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JUDICIAL TRAINING & RESEARCH INSTITUTE, U.P.,
LUCKNOW
Quarterly Digest
CONSTITUTIONAL, CIVIL, CRIMINAL & REVENUE LAWS (Covering important judgments of Supreme Court and Allahabad High Court)
April to June, 2018
Volume: XX Issue No.: 1
EDITOR-IN-CHIEF
SAROJ YADAV
Director
EDITOR-IN-CHARGE
Anoop Kumar Goel, Addl. Director
(REDITORS
Dr. Babbu Sarang, Addl. Director (Research), Ram Nagina Yadav, Addl. Director (Trg.),
Rajeev Meheshwaram, Addl. Director (Admin.), Mohinder Kumar, Dy. Director Saurabh Saxena, Dy. Director
FINANCIAL ADVISOR
Sunita Aditya, Addl. Director (F.) ASSOCIATE
B.K. Mishra, Research Officer
ASSISTANCE
Waqar Hasan
Girish Kumar Singh
SUBJECT INDEX
(Supreme Court)
Sl. No. Name of Act
1. Administration of Justice
2. Administrative Law
3. Advocates Act
4. Arbitration and Conciliation Act
5. Civil Procedure Code
6. Constitution of India
7. Court Fees Act
8. Criminal Jurisprudence
9. Criminal Procedure Code
10. Criminal Trial
11. Doctrine of Equity
12. Doctrines and Maxims
13. Election Law
14. Evidence Act
15. Family and Personal Laws
16. Guardians and Wards Act
17. Hindu Marriage Act
18. Hindu Succession Act
19. Honour Killing
20. Indian Penal Code
21. Industrial Disputes Act
22. Interpretation of Statutes
23. Juvenile Justice (Care and Protection of Children) Act
24. Land Acquisition Act
25. Limitation Act
26. Motor Vehicles Act
27. Narcotic Drugs and Psychotropic Substances Act
28. Negotiable Instruments Act
29. Practice and Procedure
30. Prevention of Corruption Act
31. Protection of Children from Sexual Offences Act (POCSO)
32. Provincial Small Cause Courts Act
33. Rent Law
34. Right to Fair Compensation and Transparency in Land
Acquisition, Rehabilitation and Settlement Act
35. Scheduled Castes and the Scheduled Tribes (Prevention of
Atrocities)Act
36. Service Law
37. Specific Relief Act
38. Transfer of Property Act
39. U.P. Urban Buildings (Regulation of Letting, Rent and Eviction
) Act
40. Words and Phrases
SUBJECT INDEX
(High Court)
Sl. No. Name of Act
1. Administration of Justice
2. Arms Act
3. Civil Procedure Code
4. Constitution of India
5. Criminal Procedure Code
6. Evidence Act
7. Excise Act
8. Hindu Adoptions and Maintenance Act
9. Hindu Marriage Act
10. Interpretation of Statutes
11. Land Acquisition Act
12. Legal Services Authorities Act
13. Motor Vehicles Act
14. Provincial Small Cause Courts Act
15. Public Premises (Eviction of Unauthorized Occupants) Act
16. Right to fair compensation and Transparency in Land
Acquisition, Rehabilitation and Resettlement Act
17. Securitization and Reconstruction of Financial Assets and
Enforcement of Security Interest Act
18. Service Law
19. Stamp Act
20. Statutory Provisions
21. Succession Act
22. U.P. Consolidation of Holdings Act
23. U.P. Land Revenue Act
24. U.P. Revenue Code
25. U.P. Urban Building (Regulation of Letting, Rent and Eviction)
Act
26. U.P.Z.A. & L.R. Act
27. Words and Phrases
28. Legal Quiz
NOTE: This journal is meant only for reference and guidance.
For authentic detailed information, readers are
advised to consult referred Journal(s).
LIST OF THE CASES COVERED IN THIS ISSUE
(SUPREME COURT)
Sl. No. Name of the Case & Citation
1. Akhilesh Singh alias Akhileshwar Singh V. Lal Babu Singh,
(2018) 4 SCC 659
2. Anil Kumar Singh V. Vijay Pal Singh 2018 (4) Supreme 220
3. Anilkumar Jinabhai Patel V. Pravinchandra Jinabhai Patel
2018 (3) Supreme 245
4. Apollo Zipper India Ltd. V. W. Newman and Co. Ltd. 2018(4)
Supreme 385
5. Archit Saini V. Oriental Insurance Company Ltd 2018(3)
Supreme 455
6. Arif Khan @ Agha Khan V. The State Of Uttarakhand 2018 (4)
Supreme 4923
7. Asian Resurfacing of Road Agency Pvt. Ltd. V. Central Bureau
of Investigation 2018 (3) Supreme 152
8. Asok Pande V. Supreme Court of India, (2018) 5 SCC 341
9. Atcom Technologies Limited V. Chunawala, 2018(7) Scale 35
10. Auto Care V. Trimurti Cargo Movers Pvt. Ltd. 2018 (3)
Supreme 314
11. Avinash C. V. State of Karnataka 2018 (4) Supreme 131
12. Bar Council of India V. A.K. Balaji 5 SCC 379: 2018 (2)
Supreme 586
13. Bharatiya Janata Party West Bengal V. State of West Bengal
2018(4) Supreme 178
14. Bharat kumar Rameshchandra Barot V. State of Gujarat 2018
(4) Supreme 284
15. Bhartiben Nayabha Ker V. Sidabha Pethabha Manke 2018 (3)
Supreme 522
16. Bhaskarrao & Ors. V. State of Maharashtra 2018 (4) Supreme
566
17. Bimal Gurung V. Union of India 2018 (2) Supreme 644
18. Board of Control for Cricket in India V. Kochi Cricket Pvt. Ltd.
2018(2) Supreme 721
19. Canara Bank V. N.G. Subbaraya Setty 2018(4) Supreme 394 :
2018 (6) Scale 213
20. Cheran Propertiees Limited V. Kasturi And Sons Limited 2018
(4) Supreme 451
21. Chhotanben V. Kiritbhai Jalkrushnabhai Thakkar 2018 (4)
Supreme 170
22. Common Cause (A Registered Society) V. Union of India 2018
(2) Supreme 164: (2018) 5 SCC 1
23. Cr.P.C.Satyendra Kumar Mehra @ Satendera Kumar Mehra
V. State of Jharkhand 2018 (3) Supreme 531
24. Danamma alias Suman Surpur V. Amar, (2018) 3 SCC 343
25. Dashrath Alias Jolo V. State of Chhattisgarh, (2018) SCC 428
26. Delhi Development Authority V. Munni Lal 2018 (4) 93
27. Dharmabiri Ran V. Pramod Kumar Sharma (D) Through LRs.
2018 (3) Supreme 403
28. Dinesh Singh Thakur V. Sonal Thakur 2018 (4) Supreme 359
29. Director, Aryabhatta Research Institute of Observational
Sciences (ARIES) V. Devendra Joshi
30. Dr. Subhash Kashinath Mahajan V. The State of Maharashtra
and Anr. 2018 (4) Scale 661
31. G. Saraswathi V. Rathinammal 2018 (3) Supreme 196
32. Ganapathi V. The State of Tamil Nadu, (2018) 5 SCC 549:
2018(4) Supreme 302
33. Gorusu Nagaraju s/o Apparao V. State of Andhra Pradesh 2018
(2) Supreme 765
34. Gurbakhsh Singh V. Buta Singh and Another, 2018 (6) Scale
484
35. H.V. Nirmala V. R. Sharmila, (2018) 3 SCC 303
36. Hemraj Chandrakar V. Sate of Chhattisgarh 2018 (4) Supreme
207
37. Hon‘ble High Court of Judicature at Allahabad- Through
Registrar General V. The State of Uttar Pradesh & Ors. 2018
(5) Scale 176
38. IBI Consultancy India Private Limited V. DSC Limited 2018 (4)
Supreme 639
39. Icici Lambord General Insurance Co. Ltd. V. Ajay Kumar
Mohanty 2018 (2) Supreme 413:2018 ACJ 1020
40. Indore Development Authority V. Shailendra (Dead) Through
Legal Representatives, (2018) 3 SCC 412
41. Jagdish V. Mohan 2018 (2) Supreme 388:(2018) 4 SCC 571
42. Jalendra Padhiary V. Pragati Chhotray 2018 (4) 356
43. Jasmeet Kaur V. Navtej Singh, (2018) 4 SCC 295
44. Jayant Verma V. Union of India, (2018) 4 SCC 743
45. Kameshwar Singh V. State of Bihar 2018 (3) Supreme 550
46. Kerala State Electricity Board V. Kurien E. Kalathil, (2018) 4
SCC 793
47. Kishanlal Bholuram Kumbhar @Kishan Prajapati V. The State
of Gujarat, 2018 (7) Scale 461
48. Kurukshetra University V. Prithvi Singh 2018 (3) Supreme 321
49. Lachhman Dass V. Resham Chand Kaler, (2018) 3 SCC 187
50. Lakshmi @Lakshmamma & Ors. V. Chamundamma & Ors.
2018 (5) Scale 693
51. Lavghanbhai Devjibhai Vasava V. State of Gujarat, (2018) 4
SCC 329
52. Lok Prahari through its General Secretary V. Union of India,
(2018) 4 SCC 699: 2018 (2) Supreme 549
53. Lt. CDR. M. Ramesh V. Union of India2018 (4) Supreme 365
54. M/s. Lion Engineering Consultants V. State of M.P. & Ors.,
2018 (5) Scale 526
55. Madan @ Madhu Patekar V. The State of Maharashtra 2018 (3)
Supreme 546
56. Madan Mohan V. State of Rajasthan 2018 (4) Supreme 1
57. Madiraju Venkata Ramana Raju V. Peddireddigari
Ramachandra Reddy 2018 (4) Supreme 261
58. Mahanth Satyanand @ Ramjee Singh V. Shyam Lal Chauhan
2018 (3) Supreme 684: 2018 (5) SCALE 314
59. Mahesh Chandra Verma V. The State of Jharkhand through Its
Chief Secretary, 2018 (7) Scale 343
60. Manimegalai V. The Special Tahsildar (Land Acquisition
Officer) Adi Dravidar Welfare 2018(4) Supreme 612
61. Manju Surana V. Sunil Arora 2018 (4) Supreme 291
62. Manoharan V. State Rep. By Inspector of Police, 2018 (7) Scale
310
63. Mohammad Yusuf V. State of Haryana, 2018(5) Scale 698
64. Mohar Sai V. Gayatri Devi 2018 (4) Supreme 503
65. Ms. Eera Through Dr. Manjula Krippendorf V. State (Govt. of
NCT of Delhi) 2018 (4) Supreme 33
66. Ms. X V. The State of Telangana, 2018(7) Scale 494
67. Municipal Corporation, Ujjan V. BVG India Limited 2018 (4)
Supreme 12
68. Municipal Council, Bawal V. Babu Lal, (2018) 4 SCC 369
69. Munshiram V. State of Rajasthan, (2018) 5 SCC 678 : 2018 (3)
Supreme 557
70. Munusamy V. Managing Director, Tamil Nadu State Transport
Corporation (Villupuram) Ltd. 2018(3) Supreme 449 :2018 ACJ
740
71. Murugan V. State of Tamil Nadu 2018 (4) Supreme 545
72. Nahar Singh V. State of U.P. 2018 (6) Scale 567
73. Naresh V. The State Of Uttarakhand 2018 (4) Supreme 482
74. Navaneethakrishnan V. The State By Inspector Of Police 2018
(4) Supreme 652
75. Navaneethakrishnan V. The State By Inspector of Police 2018
(4) Supreme 652:2018 (6) SCALE 16
76. Nishan Singh V. Oriental Insurance Company Ltd. through
Regional Manager 2018 (4) Supreme 560
77. Osama Aziz V. State of Uttar Pradesh 2018(4) Supreme 498
78. P. Meenakshisundaram V. P. Vijayakumar 2018 (3) Supreme
181
79. Pralhad Shankarrao V. State of Maharashtra through its
Secretary (Revenue) 2018(2) Supreme 487Ummer V. Pottengal
Subida
80. Prateek Gupta V. Shilpi Gupta 2018 (3) Supreme 368
81. Pratima Das alias Arati Das V. Subudh Das, (2018) 4 SCC 528
82. Priyanka Nagpal V. State (NCT of Delhi), (2018) 3 SCC 249
83. Rambeer Shokeen V. State (NCT of Delhi), (2018) 4 SCC 405
84. S. Thangaraj V. National Insurance Co. Ltd. Rep. by the
Branch Manager 2018(2) Supreme 442:(2018) 3 SCC 605
85. Sampurna Behura V. Union of India, (2018) 4 SCC 433
86. Sanjay Kumar Sinha V. Asha Kumari, (2018) SCC 333 : 2018
(5) Scale 410
87. Saraswati Singh V. Shailesh Singh 2018 (2) Supreme 518
88. Satyendra Kumar Mehra @ Satendera Kumar Mehra V. State
of Jharkhand 2018 (3) Supreme 531
89. Shafhi Mohammad V. The state of Himachal Pradesh 2018 (2)
Supreme 545
90. Shafin Jahan V. Asokan K.M. 2018 (4) Supreme 144
91. Shajahan V. State represented by Inspector of Police 2018 (2)
Supreme 449
92. Shakti Vahini V. Union of India 2018 (3) Supreme 100
93. Shiv Singh V. State of Himachal Pradesh 2018 (4) Supreme 480
94. Singh Ram V. Nirmala, (2018) 3 SCC 800
95. Sita Ram Bhama V. Ramvatar Bhama 2018 (3) 523
96. Sitaram V. Radhey Shyam Vishnav, (2018) 4 SCC 507
97. Sivakami V. State of Tamil Nadu, (2018) 4 SCC 587
98. Smt. Sudama Devi V. Vijay Nath Gupta, 2018 (6) Scale 10:2018
(4) Supreme 352
99. Smt. Sunita Devi V. Union of India 2018 (3) Supreme 444
100. Smt. Suvarnamma V. United India Insurance Company Ltd.
2018 (5) Scale 516
101. Sneha Kumari V. Manit Kumar, (2018) 4 SCC 501
102. Subhash Chandra Sen(D) Thr.Lrs. V. Nabin Sain (D) Thr.
Lrs. 2018 (4) Supreme 419
103. Sudhakar alias Sudharasan V. State Represented by the
Inspector of Police, Srirangam Police Station, Trichy, Tamil
Nadu, (2018) 5 SCC 435
104. Sundaram Finance Ltd. V. Abdul samad 2018 (3) Supreme 198
105. Surat Singh (Dead) V. Siri Bhagwan, (2018) SCC 562
106. Surender Singh V. State of Haryana, (2018) 3 SCC 278
107. Tata Iron and Steel Co. Ltd. V. State of Bihar 2018 (4) Supreme
4
108. The Andhra Pradesh Industrial Infrastructure Corporation
Ltd. V. S.N. Raj Kumar 2018 (4) Supreme 116
109. Trilok Singh Chauhan V. Ram Lal (Dead) Thr. Lrs. 2018 (4)
Supreme 228
110. UCO Bank V. Rajendra Shankar Shukla 2018 (4) Supreme 257
111. Uma Pandey V. Munna Pandey 2018(3) Supreme 542 : (2018) 5
SCC 376 : 2018(2) ARC 32 S.C.
112. Ummer V. Pottengal Subida 2018(2) Supreme 490
113. Union of India V. Chaman Rana 2018 (4) Supreme 105
114. Union of India V. Leen Martin, (2018) 4 SCC 490
115. Union of India V. M/s Varindera Constructions Ltd. etc. 2018
(6) Scale 359
116. Union of India V. Pirthwi Singh 2018 (4) Supreme 327
117. Upendra Singh V. State of Bihar, (2018) 3 SCC 680
118. Vishnu Chandru Gaonkar V. N.M. Dessai 2018 (2) Supreme 499
LIST OF THE CASES COVERED IN THIS ISSUE
(HIGH COURT)
Sl. No. Name of the Case & Citation 1. Amit Srivastava V. State of U.P. 2018 (36) LCD 1057
2. Babita Thakur V. State of U.P., 2018 (2) AWC 1091
3. Badam Singh Daroga (D) V. Kamal Singh Sareen, 2018 (2)
AWC 1678
4. Bharat Sanchar Nigam Ltd. V. Rameshwar Dayal 2018 (2)
AWC 2154
5. Bhure Singh V. State of U.P., 2018 (2) AWC 1385
6. Brahma Singh V. State of U.P., 2018(36) LCD 1077
7. Branch Manager, ICICI Lombard General Ins. Co. Ltd. V.
Kaliyamoorthy, 2018 ACJ 1352 (Madras) (DB)
8. Chhotey Lal V. Ram Naresh Singh, 2018 (3) ALJ 371
9. Eram Girls Degree College V. State of U.P., 2018 (3) ALJ
417(FB)
10. Hari Dayal V. State of U.P., 2018 (3) ALJ 337 (DB)
11. Jila Singh V. Union of India, 2018 (3) ALJ 708
12. Jithendra Kumar Jain V. Ashok Kumar Jain, 2018 (3) ALJ
369
13. Kotak Mahendra Bank Ltd. V. State of U.P., 2018 (36) LCD
928: 2018 (3) AWC 2487
14. M/s. N.C.M.L. Industries Ltd. V. Debts Recovery Tribunal,
Lucknow, 2018 (3) ALJ 551
15. Mahesh Kumar V. Swami Dayal Kaityar, 2018 (2) AWC 2100
16. Maskoor V. State of U.P. 2018(36) LCD 1319
17. Mohd. Mustahsan Siddiqui V. Smt. Rijwan Amra, 2018 (2)
AWC 1260
18. Mohd. Yaqub Khan (d) through L.Rs. V. Jalil Khan (D)
through L.Rs. 2018 (2) AWC 1427
19. Nathoo Ram V. Deputy Director of consolidation 2018 (36)
LCD 908
20. National Insurance Co. Ltd. V. Lavkush, 2018 ACJ 765
21. National Insurance Co. Ltd. V. Sujata Manna, 2018 ACJ 880
(Cal.)
22. New India Assurance Co. Ltd. V. Javitri Devi 2018 (3) AWC
2282
23. New India Assurance Co. Ltd. V. Sundari, 2018 ACJ 924
24. New Indian Assurance Co. Ltd. V. G.P. Agrawal, 2018 (3) ALJ
483
25. Om Prakash V.Chandra Prakash, 2018(2) ARC 118
26. Prem Shanker V. District Judge, Bareilly 2018 (2) AWC 1786
27. Radhey Shyam Varshney and other V. Raroghuddin Jafri and
another, 2018 (2) AWC 1758
28. Raj Kumar Pal V. State of U.P. and another, 2018 (3) AWC
2699
29. Rakesh Kumar V. C.M.O., 2018 (3) ALJ 350
30. Ram Charan V. State of U.P. 2018(36) LCD 1178
31. Ram Ekwal Prasad V. Union of India, 2018 (36) LCD 1012
32. Ram Kishore Seth V. Bhagwan Shri Laxmi Narayan Mandir
Trust 2018 (36) LCD 1176
33. Ram Swaroop V. D.D.C., 2018 (3) AWC 2183
34. Ramesh Chandra V. Ramhet, 2018 (3) AWC 2326
35. Ramesh Chandra Sharma V. State of U.P., 2018 (3) ALJ 462 (3
Judges Bench)
36. Ramesh Prasad Jaiswal V. Purushotham Narain and another,
2018 (36) LCD 861
37. Renu Singh @ Reenu Singh V. Pramod Kumar Singh , 2018
(2) AWC 1210
38. Rooprani Jina V. Deep Chand Jain @ Deelep Jain, 2018 (2)
AWC 1098
39. Saurabh Gupta V. Smt. Hasrati, 2018 (2) AWC 1705: 2018 (3)
ALJ 610
40. Shiv Kumar V. State of U.P. and another, 2018 (3) AWC 2335
41. Shiv Nath Singh V. Dy. Director of Consolidation, 2018 (3)
ALJ 336
42. Shiv Pratap V. State of U.P. and other, 2018 (36) LCD 1083
43. Shyam Sunder Tripathi V. State of U.P. 2018 (2) AWC 1845
44. Smt. Anju V. Satish Kumar, 2018 (36) LCD 849
45. Smt. Gurpreet Kaur V. Rajeev Singh, 2018 (3) ALJ 227
46. Smt. Manju Arora V. Estate officer, Meerut Cantonment and
another, 2018 (3) AWC 2582
47. Smt. Vinita Bhatnagar V. Union of India 2018 (36) LCD 1065
48. Snehlata Singh @ Salenta V. State of U.P. 2018 (3) AWC 2610
(DB)
49. Sudarshan Yadav V. Union of India and another, 2018 (3)
AWC 2672 (DB)
50. Suresh Chandra V. State of U.P. 2018 (2) AWC 1675
51. Syed Ali Shabbar Abidi V. Muzaffar Ahmed and 2 others,
2018(1) ARC 832
52. Triyugi Narian Gupta and Another V. Ramesh Chandra
Jaiswal and 2 2018(2) ARC 130
53. U.P State Road Transport Corporation, Meerut V. State of
U.P. 2018 (3) AWC 2457
Part –I (Supreme Court)
Administration of Justice:
Cause of action – Dead and stale claim – Subsequent pronouncement by Supreme
Court – Cannot revive the claim
A subsequent pronouncement by this Court could not enthuse a fresh lease of
life, or furnish a fresh cause of action to what was otherwise clearly a dead and stale
claim. In State of Uttaranchal vs. Shiv Charan Singh Bhandari, (2013) 12 SCC 179, it was
observed that:"
29.... Not for nothing, has it been said that everything may stop but not the
time, for we are all slaves of time. There may not be any provision providing
for limitation but a grievance relating to promotion cannot be given a new
lease of life at any point of time."
Union of India V. Chaman Rana 2018 (4) Supreme 105
Division Bench judgment overlooking materials on record – Not sustainable – Matter
remanded
The need to remand the case to the Division Bench of the High Court has
arisen because from the perusal of Para 4 of the impugned judgment we find that the
Division Bench observed:-
“There is not a single averment that the possession of the land has not been
taken. In the writ petition, there is no averment much less any proof of the
fact that this land has been taken over”.
Learned counsel for the appellants (writ petitioners), however, pointed out, by
referring to the prescribed Column No.3 (particulars of the cause/order against which
the petition is made) of the writ petition, Para 4 of the application for grant of interim
relief dated 29.02.2016 filed along with the writ petition, and paras 1.1, 1.20, 2.2, 2.4
and 2.7 of the writ appeal memo that the writ petitioners have made specific
averments in these paras that they are in possession of the land in question.
In our opinion, in the light of the averments made by the writ petitioners in
the aforementioned paras, as detailed above, which seem to have escaped the
attention of the Division Bench, the impugned judgment needs to be set aside.
We, therefore, consider it just and proper to remand the case to the Division
Bench of the High Court and request the Division Bench to decide the writ appeal
afresh in accordance with law. Hemraj Chandrakar V. Sate of Chhattisgarh 2018 (4)
Supreme 207
Frivolous litigation – Dismissed with cost of 1,00,000 as before – Held that union of
India shall be more responsible and finalize formulation of fresh National Litigation
Policy.
To say the least, this is an extremely unfortunate situation of unnecessary and
avoidable burdening of this Court through frivolous litigation which calls for yet
another reminder through the imposition of costs on the Union of India while
dismissing this appeal. We hope that someday some sense, if not better sense, will
prevail on the Union of India with regard to the formulation of a realistic and
meaningful National Litigation Policy and what it calls ‘ease of doing business’, which
can, if faithfully implemented benefit litigants across the country.
The appeal is dismissed with costs of Rs.1,00,000/- as before to be deposited
with the Supreme Court Legal Services Committee within four weeks from today for
utilization for juvenile justice issues. Pending I.As. are also disposed of. Union of India
V. Pirthwi Singh 2018 (4) Supreme 327
No party should be allowed to suffer for the error of the court.
The plaintiff had sought partition of the suit property in terms of the plan
produced on 6.2.2001 which is evident from the application referred to above. As
such, the plaintiff cannot be permitted to say that the map produced with the
application dated 6.2.2001 was not the map filed by him. It is not possible to give
effect to the partition decree without a sketch map of the suit schedule property. At
the time of passing the judgment and decree, the trial court should have made the
said map as a part of the decree so that the partition could have been effected as per
the said sketch. No party should be allowed to suffer for the error of the court. In the
circumstances, the trial court has rightly made the plan a part of the decree for
effecting partition. We are of the view that the High Court was not justified in setting
aside the said order. Subhash Chandra Sen(D) Thr.Lrs . V. Nabin Sain(D)Thr.Lrs. 2018
(4) Supreme 419
Procedural laws –Should not be construed as penal provisions to punish the parties as
far as possible – Application for condonation of delay should be considered liberally
This case reminds us of the apt observations made by the learned Judge of this
Court, Vivian Bose J., in Sangram Singh vs. Election Tribunal Kotah & Anr., AIR 1955 SC
425. His Lordship, speaking for the Bench, in his distinctive style of writing with subtle
power of expression reminded the Courts as to how the code of procedure should be
construed in the context of rights of the parties to the lis, which affects their lives and
properties.
His Lordship reminded that procedural laws should not be construed like a
penal provision to punish the parities as far as possible. The following is the classic
passage, which is always followed for doing substantial justice to the parties to the lis:
"A code of procedure must be regarded as such.
It is procedure something designed to facilitate justice and further its ends:
not a penal enactment for punishment and penalties; not a thing designed to trip
people up. Too technical a construction of sections that leaves no room for reasonable
elasticity of interpretation should therefore be guarded against (provided always that
justice is done to both sides) lest the very means designed for the furtherance of
justice be used to frustrate it.
Our laws of procedure are grounded on a principle of natural justice which
requires that men should not be condemned unheard, that decisions should not be
reached behind their backs, that proceedings that affect their lives and property
should not continue in their absence and that they should not be precluded from
participating in them. Of course, there must be exceptions and where they are clearly
defined they must be given effect to. But taken by and large, and subject to that
proviso, our laws of procedure should be construed, wherever that is reasonably
possible, in the light of that principle."
In our opinion, keeping in view the aforementioned observations and further
having regard to the nature of controversy involved in the case, the High Court should
have been liberal in taking a view in the matter and accordingly should have condoned
the delay and granted the appellants one more opportunity to cure the defects.
Pralhad Shankarrao V. State of Maharashtra through its Secretary (Revenue) 2018(2)
Supreme 487Ummer V. Pottengal Subida
A plea not taken before High Court – Cannot be taken before Supreme Court for the
first time.
A plea not taken before High Court cannot be taken before Supreme Court for
the first time. The Andhra Pradesh Industrial Infrastructure Corporation Ltd. V. S.N. Raj
Kumar 2018 (4) Supreme 116
Administrative Law:
Policy decision taken by Government – If in larger public interest, not mala fide, not
actuated by extraneous reasons – Cannot be said to be arbitrary.
When we examine the decision taken by the Central Government in a holistic
manner, we have no doubt that the decision to scrap the LCE recruitment has been
taken in the larger public interest. The decision is definitely not mala fide. It is not
actuated by extraneous reasons. It cannot be said that the decision is arbitrary. Lt.
CDR. M. Ramesh V. Union of India2018 (4) Supreme 365
Proportionality – Proportionality is an important aspect of Administrative Law.
In the realm of Administrative Law 'proportionality' is a principle where the
Court is concerned with the process, method or manner in which the decision-maker
has ordered his priorities and reached a conclusion or arrived at a decision. The very
essence of decision-making consists in the attribution of relative importance to the
factors and considerations in the case. The doctrine of proportionality thus steps in
focus true nature of exercise - the elaboration of a rule of permissible priorities.
[Wade, Administrative Law (2009) 157 – 158, 306 – 308] The Andhra Pradesh Industrial
Infrastructure Corporation Ltd. V. S.N. Raj Kumar 2018 (4) Supreme 116
Selection found to be tainted in any manner – Always open to concerned authority to
anal such selection
We find that the High Court has referred to material on record in the form of
call details between candidates and members of the KPSC. All the members who
interviewed the candidates awarded exactly the same marks to particular candidates.
There was no objective assessment by individual members. There appeared to be
extraneous reasons in awarding the marks. 566 candidates were awarded same marks
which appeared to be pre-determined. Digital video recorder in the KPSC building was
replaced to destroy evidence. In this view of the matter, we do not find any ground to
interfere with the view of the High Court that the selection could not have been
sustained. If the selection is found to be tainted in any manner, it is always open to the
concerned authority to annul such selection to maintain purity of the selection
process. Avinash C. V. State of Karnataka 2018 (4) Supreme 131
Advocates Act:
Right to practice law in India—Foreign law firms/companies or foreign lawyers,
whether entitled—Held, foreign law firms/companies or foreign lawyers cannot
practice law in India either on litigation or on non-litigation side
Ethics of the legal profession apply not only when an advocate appears before
the Court. The same also apply to regulate practice outside the Court. Adhering to
such Ethics is integral to the administration of justice. The professional standards laid
down from time to time are required to be followed. Thus, the view that practice of
law includes litigation as well as non litigation is upheld.
Scheme in Chapter-IV of the Advocates Act makes it clear that advocates
enrolled with the Bar Council alone are entitled to practice law, except as otherwise
provided in any other law. All others can appear only with the permission of the court,
authority or person before whom the proceedings are pending. Regulatory mechanism
for conduct of advocates applies to non-litigation work also. The prohibition applicable
to any person in India, other than advocate enrolled under the Advocates Act,
certainly applies to any foreigner also.
Thus, the view of the Bombay High Court and that of the Madras High Court in
para 63(i) is upheld to the effect that foreign law firms/companies or foreign lawyers
cannot practice profession of law in India either in the litigation or in non-litigation
side. Bar Council of India V. A.K. Balaji, (2018) 5 SCC 379: 2018 (2) Supreme 586
Ss. 29& 33 – Ethics of legal profession – Applicable to practice in and outside court –
held, practice of law includes litigation as well as non-litigation.
Ethics of the legal profession apply not only when an advocate appears before
the Court. The same also apply to regulate practice outside the Court. Adhering to
such Ethics is integral to the administration of justice. The professional standards laid
down from time to time are required to be followed. Thus, we uphold the view that
practice of law includes litigation as well as non litigation. Bar Council of India V. A.K.
Balaji 5 SCC 379: 2018 (2) Supreme 586
Ss. 32 & 33 – Arbitration – Conducting by foreign lawyers – If governed by
international commercial arbitration agreement – Will be regulated by Sec. 32 or 33
r/w Arbitration and Conciliation Act, 1996.
It is not possible to hold that there is absolutely no bar to a foreign lawyer for
conducting arbitrations in India. If the matter is 49 governed by particular rules of an
institution or if the matter otherwise falls under Section 32 or 33, there is no bar to
conduct such proceedings in prescribed manner. If the matter is governed by an
international commercial arbitration agreement, conduct of proceedings may fall
under Section 32 or 33 read with the provisions of the Arbitration Act. Even in such
cases, Code of Conduct, if any, applicable to the legal profession in India has to be
followed. It is for the Bar Council of India or Central Government to make a specific
provision in this regard, if considered appropriate. Bar Council of India V. A.K. Balaji 5
SCC 379: 2018 (2) Supreme 586
Arbitration and Conciliation Act:
Ss. 5 & 34-Arbitration Award- Legality of – Scope of interference by Courts
The primary object of the arbitration is to reach a final disposition in
a speedy, effective, inexpensive and expeditious manner. In order to
regulate the law regarding arbitration, legislature came up with legislation
which is known as Arbitration and Conciliation Act, 1996. In order to
make arbitration process more effective, legislature restricted the role of
courts in case where matter is subject to the arbitration. Section 5 of the
Act specifically restricted the interference of the courts to some extent. In
other words, it is only in exceptional circumstances, as provided by this
Act, the court is entitled to intervene in the dispute which is subject matter
of arbitration. Such intervention may be before, at or after the arbitration
proceeding, as the case may be. In short, court shall not intervene with the
subject matter of arbitration unless injustice is caused to either of the
parties.
It is well-settled cannon of law that parties are free to decide their
own terms and conditions in case of a contract. In the instant case, Clause
19 of the special conditions deal with issue of bar on reimbursement of
certain payments on account of escalation.
On a plain reading of abovementioned clause, prima facie, it
appears that the appellant made it clear that the contractor shall quote their
rate after having regard to this clause that no reimbursement regarding any
escalation whatsoever be made to the contractor if any such escalation
takes place during the subsistence of the contract which the respondent
with open eyes had agreed. The word “whatsoever” as used in Clause 19
suggests that even any escalation takes place due to the action of the
government would also not be reimbursed.
To sum up, Clause 19 cannot be read in the light of second Part of
Clause 25 as both stands on different footing i.e., deal with separate
issues. Hence, the respondent-Contractor in the present case is not entitled
to claim any escalation in minimum wages as it would be against the
condition of Clause 19 read with Clause 6.3. Union of India v. M/s
Varindera Constructions Ltd. etc. 2018 (6) Scale 359
Sec. 11(6) r/w Sec. 11 (9) – Scope u/s 11(6) r/w 11(9) is very limited – Court to
ascertain existence of arbitration agreement
The first and the foremost thing is the existence of an arbitration
agreement between the parties to the petition under Section 11 of the Act
and the existence of dispute(s) to be referred to Arbitrator is condition
precedent for appointing an Arbitrator under Section 11 of the Act. It is
also a well settled law that while deciding the question of appointment of
Arbitrator, court has not to touch the merits of the case as it may cause
prejudice to the case of the parties. The scope under Section 11(6) read
with Section 11(9) is very limited to the extent of appointment of
Arbitrator. This Court has to see whether there exists an Arbitration
Agreement between the parties and if the answer is affirmative then
whether the petitioner has made out a case for the appointment of
Arbitrator.
It is worth mentioning that the position after the insertion of sub-
Section 6(A) of Section 11 of the Act dated 23.10.2015 has been changed.
The contention of the respondent-Company that there does not
exist any arbitration agreement between the parties is not sustainable in
the eyes of law. We are of the considered view that Arbitration clause
exists in the Contract and we hold this point in favour of the petitioner-
Company. IBI Consultancy India Private Limited V. DSC Limited
2018 (4) Supreme 639
Ss. 16 & 34 –Arbitration Award – Objection u/s 34 of the Act- Plea of jurisdiction raised
by way of an objection u/s 34 of the Act- Not barred even if no such objecti0n was
raised u/s 16 of the Act
Court does not see any bar to plea of jurisdiction being raised by way of an
objection under Section 34 of the Act even if no such objection was raised under
Section 16.
Both stages are independent. Observations in Paragraphs 16 and 17 in MSP
Infrastructure (supra) do not, in our view, lay down correct law. We also do not agree
with the observation that the Public policy of India does not refer to a State law and
refers only to an All India law.
The matter may now be taken up by the trial court for consideration of
objections under Section 34 of the Central Act. It will be open for the respondents to
argue that its objection that the Act stands excluded by the M.P. Madhyastham
Adhikaran Adhiniyam, 1983 could be raised even without a formal pleading, being
purely a legal plea. It will also be open to the appellant to argue to the contrary.
The matter arising out of a dispute in execution of a works contract was
referred to the Arbitrator by the High Court on 4.09.2008. The Arbitrator made his
Award dated 10.07.2010 in favour of the appellant. It was challenged under Section 34
of the Arbitration and Conciliation Act, 1996 ("the Act") before the Seventh Additional
District Judge, Bhopal by the respondent-State of M.P. The respondent sought to
amend its objections after three years which was rejected by the trial Court. On a
petition under Article 227 of the Constitution of India, the High Court has allowed the
said amendment.
Learned counsel for the appellant submitted that the amendment
could not be allowed beyond the period of limitation which affected the
vested rights of a party. It 2 was also submitted that the objection having
not been raised under Section 16(2) of the Act before the Arbitrator, could
not be raised under Section 34 of the Act. In support of this submission
reliance has been placed on MSP Infrastructure Ltd. vs. Madhya Pradesh
Road Development Corporation Ltd. reported in (2015) 13 SCC 713. M/s.
Lion Engineering Consultants V. State of M.P. & Ors., 2018 (5) Scale
526
Ss. 34(3) and 31(5) – Limitation – Limitation period of three months cannot be
condoned beyond thirty days
Union of India V. Tecco Trichy Engineers and Contractors (2005) 4 SCC 239, a
three Judge Bench of this Court, in respect to the issue of limitation for filing
application under Section 34 of the act for setting aside the arbitral award, held that
the period of limitation would commence only after a valid delivery of an arbitral
award takes place under Sec. 31 (5) of the Act. Anilkumar Jinabhai Patel V.
Pravinchandra Jinabhai Patel 2018 (3) Supreme 245
Sec. 36 r/w Sec. 111, Companies Act, 1956 – Arbitral award having character of a
decree of a civil court capable of being enforced as a decree.
The arbitral award has the character of a decree of a civil court under Section
36 and is capable of being enforced as if it were a decree. Armed with that decree, KSL
was entitled to seek rectification before the NCLT by invoking the provisions of Section
111 of the Companies Act, 1956. There can be, therefore, no question about the
jurisdiction of NCLT to pass an appropriate order directing rectification of the register.
Cheran Propertiees Limited V. Kasturi And Sons Limited 2018 (4) Supreme 451
Ss. 42 and 36 – Jurisdiction of court – Applies to arbitral proceedings – Not the award –
Execution of an award can be filed anywhere in the country where such decree can be
executed.
Award under Section 36 of the said Act, is equated to a decree of the Court for
the purposes of execution and only for that purpose. Thus, it was rightly observed that
while an award passed by the arbitral tribunal is deemed to be a decree under Section
36 of the said Act, there was no deeming fiction anywhere to hold that the Court
within whose jurisdiction the arbitral award was passed should be taken to be the
Court, which passed the decree. The said Act actually transcends all territorial barriers.
We are, thus, unhesitatingly of the view that the enforcement of an award
through its execution can be filed anywhere in the country where such decree can be
executed and there is no requirement for obtaining a transfer of the decree from the
Court, which would have jurisdiction over the arbitral proceedings. Sundaram Finance
Ltd. V. Abdul samad 2018 (3) Supreme 198
Civil Procedure Code:
Sec. 11 – Rest judicata – Based upon two maxims – Interest reipublicae ut sit finis
litium (it concerns the state that there be an end to law suits) and nemo debet bis
vexari pro una at endem causa (no man should be vaxed twice over for the same
cause) – Maxim of universal application
Roma locuta est; causa finita est. Rome has spoken, the cause is ended. Rome
spoke through her laws. One of the pillars of Roman law is contained in the maxim res
judicata pro veritate accipitur (a thing adjudicated is received as the truth). This maxim
of Roman law is based upon two other fundamental maxims of Roman law, namely,
interest reipublicae ut sit finis litium (it concerns the State that there be an end to law
suits) and nemo debet bis vexari pro una at eadem causa (no man should be vexed
twice over for the same cause). Indeed, that this maxim is almost universal in all
ancient laws, including ancient Hindu texts
Res judicata is, thus, a doctrine of fundamental importance in our legal system, though
it is stated to belong to the realm of procedural law, being statutorily embodied in
Section 11 of the Code of Civil Procedure, 1908. However, it is not a mere technical
doctrine, but it is fundamental in our legal system that there be an end to all litigation,
this being the public policy of Indian law. The obverse side of this doctrine is that,
when applicable, if it is not given full effect to, an abuse of process of the Court takes
place. However, there are certain notable exceptions to the application of the
doctrine. One well known exception is that the doctrine cannot impart finality to an
erroneous decision on the jurisdiction of a Court. Likewise, an erroneous judgment on
a question of law, which sanctions something that is illegal, also cannot be allowed to
operate as res judicata. Canara Bank V. N.G. Subbaraya Setty 2018(4) Supreme 394 :
2018 (6) Scale 213
Sec. 11 – Res judicata – a court not having inherent jurisdiction but assuming it based
on a wrong decision – A wrong decision cannot be res judicata.
In Sushil Kumar Mehta v. Gobind Ram Bohra (1990) 1 SCC 193, The Court has
held that where there is an inherent lack of jurisdiction, which depends upon a wrong
decision, the earlier wrong decision cannot be res judicata. Similarly, in Isabella
Johnson (Smt.) v. M.A. Susai (1991) 1 SCC 494, this Court, after setting out the law
contained in Mathura Prasad (supra), stated that a Court which has no jurisdiction in
law cannot be conferred with jurisdiction by applying the principle of res judicata, as it
is well settled that there is no estoppel on a pure question of law which relates to
jurisdiction.
In Allahabad Development Authority v. Nasiruzzaman (1996) 6 SCC 424, this
Court held that when the previous decision was found to be erroneous on its face,
such judgment cannot operate as res judicata, as to give effect to such judgment
would be to counter a statutory prohibition. Canara Bank V. N.G. Subbaraya Setty
2018(4) Supreme 394 : 2018 (6) Scale 213
Sec. 34—Future interest—Not payable, in the absence of a specific direction of the
court to pay such interest
Held, u/S. 34(2) CPC, where a decree is silent as to payment of further interest
on the principal sum, it shall be deemed to have been refused. In the present case, in
the absence of a direction to pay subsequent interest, held, the respondent contractor
was not entitled to claim subsequent interest on the amount payable under Ext. P-20.
Kerala State Electricity Board V. Kurien E. Kalathil, (2018) 4 SCC 793
Sec. 89—Reference of dispute for arbitration in the absence of a written memo/joint
application—Not permissible, even when the counsel of the parties consent to the
same
In the present case, held, when there was no arbitration agreement between
the parties, without a joint memo or a joint application of the parties, the High Court
ought not to have referred the parties to arbitration. Therefore, the award passed by
the arbitrator, set aside. Arbitration and Conciliation Act, 1996, Sec. 7. Kerala State
Electricity Board V. Kurien E. Kalathil, (2018) 4 SCC 793
Sec. 100 – Substantial question of law – What constitutes – Interpretation of any
document including its contents or its admissibility in evidence or its effect on the
rights of the parties to the Lis – Constitutes a substantial question (s) of law.
It is a settled principle of law that interpretation of any document including its
contents or its admissibility in evidence or its effect on the rights of the parties to the
Lis constitutes a substantial question(s) of law within the meaning of Section 100 of
the Code.
In this case, it was all the more reason for the High Court to have admitted the
appellants' second appeal because the Trial Court and the First Appellate Court had
taken into consideration the document - Ex-A for deciding the Lis involved in the case.
In view of the foregoing discussion, the appeal succeeds and is allowed.
Impugned judgment is set aside. The appeal is remanded to the High Court for its
decision on merits on the substantial questions of law framed by us. Uma Pandey V.
Munna Pandey 2018(3) Supreme 542 : (2018) 5 SCC 376 : 2018(2) ARC 32 S.C.
Sec. 100—Second appeal—General scheme of S. 100 along with interplay between Ss.
100(4) and 100(5)—Explained
Once High Court is satisfied after hearing appellant or his counsel that appeal
involved substantial question of law, it has to formulate same u/S. 100(4). Once,
substantial question of law framed, direction for issuance of notice to respondent of
memo of appeal along with substantial question of law. Jurisdiction of High Court
confined only to substantial question of law framed it u/s. 100(4). Respondent can
raise objections u/S. 100(5) that appeal did not involve any substantial question of law.
Sec. 100(5) gives respondent right to know on which substantial question of law,
second appeal had been admitted. As substantial question of law framed behind back
of respondent, S. 100(5) enables him to raise such objection. As per proviso to S.
100(5), High Court can hear second appeal on any other substantial question of law
not framed earlier u/S. 100(4). However, while exercising such power, High Court
required to assign reasons for framing additional substantial questions of law at the
time of hearing second appeal.
Further held, while hearing second appeal, respondent required to
oppose only substantial question of law so framed u/S. 100(4) and not beyond that. If
substantial question of law itself is not framed u/S. 100(4), then there remains nothing
to oppose for respondent. Further, High Court also loses its jurisdiction to decide
second appeal finally. It is framing of substantial question of law which empowers High
Court to finally decide appeal. If High Court is satisfied that appeal does not involve
any substantial question of law, it can be dismissed in limine without even issuing
notice to respondents. While dismissing appeal for want of substantial questions of
law, High Court required to assign its reasons. High Court has to proceed in accordance
with procedure prescribed u/S. 100 for disposing second appeal either in limine or at
final hearing. Surat Singh (Dead) V. Siri Bhagwan, (2018) SCC 562
Sec. 100 and Or. 41 R. 21—Second appeal—Deciding appeal without hearing
contesting respondent—Impropriety of—Under such conditions, recall of judgment
under Or. 41, R. 21, permissible
High Court erred in deciding second appeal without hearing appellant (who
was R-4 before High Court). It also erred in dismissing his application filed under Or. 41
R. 21 r/w S. 151 for recall of judgment. In light of circumstances of case, High Court
ought to have granted opportunity to appellant for opposing second appeal and
restored second appeal for rehearing on merits. Though second appeal before High
Court was pending for long time, it did not frame substantial question of law. It framed
substantial question of law at concluding paragraph of judgment. Procedure adopted
by High Court was contrary to procedure laid down u/S. 100 CPC—High Court was
under legal obligation to frame substantial question of law at the time of admission of
appeal.
As second appeal was heard without framing substantial question of law at the
time of admission and it was framed at concluding paragraph, such method renders
judgment passed by High Court legally unsustainable. It had no jurisdiction to frame
substantial question of law while writing final judgment. Such method caused
prejudice to respondents before High Court as they could not object to it. Whenever a
statute requires to be done in particular manner then such act has to be done in that
manner only and in no other manner. As High Court failed to follow S. 100 CPC, it
committed jurisdiction error. Hence, impugned judgment passed by High Court set
aside. Surat Singh (Dead) V. Sri Bhagwan, (2018) SCC 562
O. 6 R. 17-Amendment of pleadings – Scope of power of courts
The nature of amendment as proposed neither changes the character and
nature of the suit nor does it introduce any fresh ground. The High Court itself was
conscious that the amendment would not change the nature of the suit. In the given
circumstances, in our view, the amendment ought to have been allowed. In any case it
could not have caused any prejudice to the defendants.
Court, therefore, allow this appeal and accept the application for amendment
preferred by the appellants. The plaint shall stand amended in terms of the proposed
amendment. The trial court is directed to proceed with the matter accordingly.
Gurbakhsh Singh and others. V. Buta Singh and Another, 2018 (6) Scale 484
O. 7. R.11 and O. 6, R. 16 – Application under rule 11 should be considered at the
threshold – On basis of institutional defects – On the other hand application under R.
16 for striking out pleadings may be resorted to at any stage.
Ordinarily, an application for rejection of election petition in limine,
purportedly under Order VII Rule 11 for non-disclosure of cause of action, ought to
proceed at the threshold. For, it has to be considered only on the basis of institutional
defects in the election petition in reference to the grounds specified in clauses (a) to
(f) of Rule 11. Indeed, non-disclosure of cause of action is covered by clause (a)
therein. Concededly, Order VII of the CPC generally deals with the institution of a
plaint. It delineates the requirements regarding the particulars to be contained in the
plaint, relief to be specifically stated, for relief to be founded on separate grounds,
procedure on admitting plaint, and includes return of plaint.
The rejection of plaint follows the procedure on admitting plaint or even
before admitting the same, if the court on presentation of the plaint is of the view that
the same does not fulfill the statutory and institutional requirements referred to in
clauses (a) to (f) of Rule 11. The power bestowed in the court in terms of Rule 11 may
also be exercised by the court on a formal application moved by the defendant after
being served with the summons to appear before the Court. Be that as it may, the
application under Order VII Rule 11 deserves consideration at the threshold.
On the other hand, the application for striking out pleadings in terms of Order
VI Rule 16 may be resorted to by the defendant(s)/respondent(s) at any stage of the
proceedings, as is predicated in the said provision. The pleading(s) can be struck off by
the Court on grounds specified in clauses (a) to (c) of Rule 16.
Indeed, if the defendant moves two separate applications at the same time, as
in this case, it would be open to the court in a given case to consider both the
applications together or independent of each other. If the court decides to hear the
application under Order VII Rule 11 in the first instance, the court would be obliged to
consider the plaint as filed as a whole. But if the court decides to proceed with the
application under Order VI Rule 16 for striking out the pleadings before consideration
of the 21 application under Order VII Rule 11 for rejection of the plaint, on allowing
the former application after striking out the relevant pleadings then the court must
consider the remainder pleadings of the plaint in reference to the postulates of Order
VII Rule 11, for determining whether the plaint (after striking out pleadings) deserves
to be rejected in limine. Madiraju Venkata Ramana Raju Vs. Peddireddigari
Ramachandra Reddy 2018 (4) Supreme 261.
O. 7, R. 11(d) – For a decision under Rule 11 (d) only the averments in the plaint are
germane – Written statement by respondents cannot be the basis to decide the
application under O. 7 R.11 (d)
The suit came to be filed for declaration and permanent injunction.
After filing of the suit, an application was filed for directions to defendant Nos.
3 to 6 to produce before the Court, the original deed executed by the original
defendant Nos. 1 &2 in respect of the suit land and to obtain the admitted thumb
impressions of the appellants and send it for scientific examination and comparison of
the thumb impression by a Handwriting expert to unravel the truth. The original
defendant nos. 4 and 6 filed reply to the said application to oppose the same.
Thereafter, the defendant no. 5 (respondent no. 1) filed an application for rejection of
the plaint on the ground that the suit was barred by limitation having been filed after
17 years. The appellants filed reply to the said application. As regards the application
filed by the plaintiff (appellants), the Court allowed the same.
As regards the application filed by defendant No. 5 (respondent no. 1) for
rejection of the plaint, the said application as dismissed by the Trail Court.
The High Court allowed the application under O. 7 R. 11 (d) of CPC filed by
respondent no. 1(defendant no. 5) and reversed the decision of the Trial Court.
After having cogitated over the averments in the plaint and the reasons
recorded by the Trial Court as well as the High Court, we have no manner of doubt
that the High Court committed manifest error in reversing the view taken by the Trial
Court that the factum of suit being barred by limitation, was a triable issue in the fact
situation of the present case. We say so because the appellants (plaintiffs) have
asserted that until 2013 they had no knowledge whatsoever about the execution of
the registered sale deed concerning their ancestral property. Further, they have
denied the thumb impressions on the registered sale deed as belonging to them and
have alleged forgery and impersonation. In the context of totality of averments in the
plaint and the reliefs claimed, which of the Articles from amongst Articles 56, 58, 59,
65 or 110 or any other Article of the Limitation Act will apply to the facts of the
present case, may have to be considered at the appropriate stage.
What is relevant for answering the matter in issue in the context of the
application under Order VII Rule 11(d), is to examine the averments in the plaint. The
plaint is required to be read as a whole. The defence available to the defendants or the
plea taken by them in the written statement or any application filed by them, cannot
be the basis to decide the application under Order VII Rule 11(d). Only the averments
in the plaint are germane. Chhotanben V. Kiritbhai Jalkrushnabhai Thakkar 2018 (4)
Supreme 170
O. 8 R. 1- Written statement- Condonation of delay in filing written statement- Time
can be extended only in exceptional cases- High Court held, not justified in condoning
abnormal delay of 5 years in filing the written statement
It has to be borne in mind that as per the provisions of Order VIII Rule 1 of the
Code of Civil Procedure, 1908, the defendant is obligated to present a written
statement of his defence within thirty days from the date of service of summons.
Proviso thereto enables the Court to extend the period upto ninety days from the date
of service of summons for sufficient reasons.
This provision has come up for interpretation before this Court in number of
cases. No doubt, the words 'shall not be later than ninety days' do not take away the
power of the Court to accept written statement beyond that time and it is also held
that the nature of the provision is procedural and it is not a part of substantive law. At
the same time, this Court has also mandated that time can be extended only in
exceptionally hard cases.
In such a situation, onus upon the defendant is of a higher degree to plead and
satisfactorily demonstrate a valid reason for not filing the written statement within
thirty days. When that is a requirement, could it be a ground to condone delay of
more than 5 years even when it is calculated from the year 2009, only because of the
reason that Writ of Summons were not served till 2009?
We fail to persuade ourselves with this kind of reasoning given by the High
Court in condoning the delay, thereby disregarding the provisions of Order VIII Rule 1
of the Code of Civil Procedure, 1908 and the spirit behind it. This reason of the High
Court that delay was condoned 'by balancing the rights and equities' is farfetched and,
in the process, abnormal delay in filing the written statement is condoned without
addressing the relevant factor, viz. whether the respondents had furnished proper and
satisfactory explanation for such a delay. The approach of the High Court is clearly
erroneous in law and cannot be countenanced. No doubt, the provisions of Order VIII
Rule 1 of the Code of Civil Procedure, 1908 are procedural in nature and, therefore,
hand maid of justice. However, that would not mean that the defendant has right to
take as much time as he wants in filing the written statement, without giving
convincing and cogent reasons for delay and the High Court has to condone it
mechanically. Atcom Technologies Limited V. Chunawala, 2018(7) Scale 35
O. 9 R. 13 r/w Sec. 27, Appendix-B and O. V R. 20(3) – Summons required to specific
“day, date’ year and time” –Non conformity with statutory format vitiates the
published summons.
The legislature while prescribing the format of summons in the Code has
provided one column where the Court is required to mention a specific "day, date,
year and time" for the defendant's appearance in the Court to enable him to answer
the suit filed against him/her. This is also the requirement prescribed under Section 27
of the Code as is clear from the words occurring therein "and may be served in the
manner prescribed on such day".
The material infirmity in the summons was that it did not mention any specific
day, date, year and time for the defendants' appearance in the Court. This being the
requirement of Section 27 read with Order V Rule 20(3) and Process-IA of Appendix-B,
it was mandatory for the Court to mention the specific working day, date, year and
time in the columns meant for such filling. It would have enabled the defendants to
appear before the Court on the date so fixed therein. It is a settled rule of
interpretation that when the legislature provides a particular thing to be done in a
particular manner then such thing has to be done in the same prescribed manner and
in no other manner.
In the light of the foregoing discussions, service of summons on the
defendants without mentioning therein a specific day, date, year and time cannot be
held as "summons duly served" on the defendants within the meaning of Order IX Rule
13 of the Code. In other words, such summons and the service effected pursuant
thereto cannot be held to be in conformity with Section 27 read with the statutory
format prescribed in Appendix B Process (I and IA) and Order 5 Rule 20(3) of the Code.
Auto Care V. Trimurti Cargo Movers Pvt. Ltd. 2018 (3) Supreme 314
O. 12, R. 3 – Document compulsorily registrable, not registered and also not stamped –
Trail court rightly held it to be inadmissible in evidence.
We are, thus, in full agreement with the view taken by the trial court as well as
the High Court that the document dated 09.09.1994 was compulsorily registrable. The
document also being not stamped could not have been accepted in evidence and
order of trial court allowing the application under Order XII Rule 3 CPC and the reasons
given by the trial court in allowing the application of the defendant holding the
document as inadmissible cannot be faulted. Sita Ram Bhama V. Ramvatar Bhama
2018 (3) 523
O. 22, R.5 – Consideration for deciding Legal Representative
Before proceeding with second appeal, High Court must decide the question of
legal representative.
From the context of the settled legal position, it is clear that when a question
arises before the Court in a pending matter as to who will come on record as the legal
heir of the deceased, the Court shall, before proceeding to decide with the substantive
issues involved in the case, fir and foremost, shall decide who is the legal
representative of the deceased. It is also well settled that when a party dies at the
stage of second appeal and there are rival contenders claiming to be the legal
representatives of he deceased, as in the present ease, there is a burden cast upon the
Court to first decide as to who is the legal representative of the deceased. Without
doing so, the court cannot proceed with the disposal of the case on hand. At the same
time, the Court cannot make all the contenders as parties. The aspect of deciding legal
representative cannot also be postponed with a view to decide the same at the time of
final disposal of the appeal on merits. It is significant that the statute has clearly
mandated that if the question of deciding the legal representative of a legatee arises
before an appellate Court, it may direct the subordinate Court to make enquiries by
leading evidence if any through the process of trial and record its finding as to who is
the legal representative. After considering the finding recorded by the trial Court, the
appellate Court can decide and bring on record the legal representative of the
deceased. Mahanth Satyanand @ Ramjee Singh V. Shyam Lal Chauhan 2018 (3)
Supreme 684
O. 22, R. 5 – Legal representative of deceased appellant – Determination of question
as to – When a party dies at the stage of appeal and there are rival contenders
claiming to be the legal representatives of deceased – Burden cast upon the Court to
first decide as to who is the legal representative of deceased – Court cannot make all
the contenders as parties – Aspect of deciding legal representative cannot also be
postponed with a view to decide the same at the time of final disposal of the appeal
on merits.
The issue of bringing on record the legal representative in a pending appeal
has to be dealt with in a manner prescribed under the provisions of Order 22 Rule 5.
From the context of the settled legal position, it is clear that when a question arises
before the Court in a pending matter as to who will come on record as the legal heir of
the deceased, the Court shall, before proceeding to decide with the substantive issues
involved in the case, first and foremost, shall decide who is the legal representative of
the deceased. It is also well settled that when a party dies at the stage of second
appeal and there are rival contenders claiming to be the legal representatives of the
deceased, as in the present case, there is a burden cast upon the Court to first decide
as to who is the legal representative of the deceased. Without doing so, the Court
cannot proceed with the disposal of the case on hand. At the same time, the Court
cannot make all the contenders as parties. The aspect of deciding legal representative
cannot also be postponed with a view to decide the same at the time of final 9
disposal of the appeal on merits. It is significant that the statute has clearly mandated
that if the question of deciding the legal representative of a legatee arises before an
appellate Court, it may direct the subordinate Court to make enquiries by leading
evidence if any through the process of trial and record its finding as to who is the legal
representative. After considering the finding recorded by the trial Court, the appellate
Court can decide and bring on record the legal representative of the deceased.
It is indisputable that the procedural laws are meant to advance justice. A
procedure contemplated under the code which is mandatory in nature shall not be
skipped or ignored by the Courts. Whereas, in the instant case, the High Court’s
approach has diluted the purport of Order 22 Rule 5 of the CPC and is contrary to the
law laid down by this Court in Jaladi Suguna (supra). Such an approach of the High
Court cannot be sustained.
In view of the foregoing reasons, we set aside the order of the
High Court and remit the matter back to the High Court for
determining the issue as per the provisions of Order 22 Rule 5. The
High Court shall decide the question on merits as to who is the legal
representative of the deceased Swami Sheo Dharmanand on the basis
of the reports submitted by the trial Court and also taking into
account any objections or material which the parties rely upon. Only
thereafter, the High Court shall proceed with the hearing of second
appeal. Mahanth Satyanand @ Ramjee Singh V. Shyam Lal
Chauhan 2018 (5) SCALE 314
O. 23, R. 1 – Scope of
When permission is sought under O. 23 R.1 to withdraw the suit without
liberty to file a fresh suit, the defendant will have no right to object and compel the
petitioner to prosecute the suit. Anil Kumar Singh V. Vijay Pal Singh 2018 (4) Supreme
220
O. 26 Rr. 9, 13 and 14—Demarcation of land—Proper procedure for—Commission to
demarcate land
Concurrent findings of fact, one by first appellate court and other by High
Court that Municipal Council filed objections against report of Local Commissioner, but
did not examine him to clarify measurements and demarcation. Secretary of Municipal
Committee, in his affidavit stated that report of Local Commissioner was not correct
because he had not affixed three pucca points and at time of demarcation,
representative Clerk of Committee had objected but neither said representative Clerk
produced nor Local Commissioner examined regarding objection if any. Perusal of
report of Local Commissioner would reveal that pucca points were affixed and
measurements were carried out. On other hand, defendant Municipal Committee did
not produce any demarcation report which it might have obtained before raising
construction of road and drain. In impugned judgment, High Court, held, has correctly
entered a finding based on report that it was appellants who had encroached upon
part of land of plaintiffs without acquiring same and found that Tahsildar was
appointed as Local Commissioner to demarcate suit land, which was carried out in
accordance with law and in presence of representative of Municipal Council, and
Tahsildar was not cross-examined in respect of process of demarcation. Municipal
Council, Bawal V. Babu Lal, (2018) 4 SCC 369
O. 41, Rr. 27 and 2—Admission of additional evidence by appellate court—Procedure
to be adopted subsequent to-- Grant of opportunity to other party to lead evidence in
rebuttal thereof—Necessity of
Order 41 Rule 27 of the CPC, which deals with the provision of additional
evidence in Appellate Court provides for the grounds and circumstances on which the
Appellate Court may allow such evidence or documents or witnesses to be examined.
Order 41 Rule 27 sub-rule (2) further provides that wherever additional evidence is
allowed to be produced by an Appellate Court, the court shall record a reason for its
admission. Order 41 Rule 27 is silent as to the procedure to be adopted by the High
court after admission of additional evidence. Whether after admission of additional
evidence, it is necessary for the Appellate Court to grant opportunity to the other
party to lead evidence in rebuttal or to give any opportunity is not expressly provided
in Order 41 Rule 27.
However, Order 41 Rule 2 provides that the appellant shall not, except by
leave of the court, be allowed to urge any ground in the appeal, which is not set forth
in the memorandum of appeal. The proviso to Order 41 Rule 2 engrafts a rule, which
obliged the Court to grant a sufficient opportunity to the contesting party, if any new
ground is allowed to be urged by another party, which may affect the contesting party.
The provision engrafts rule of natural justice and fair play that contesting party should
be given opportunity to meet any new ground sought to be urged. When Appellate
Court admits the additional evidence under Order 41 Rule 27, Court fails to see any
reason for not following the same course of granting an opportunity to the contesting
party, which may be affected by acceptance of additional evidence.
Even if execution of sale deeds was not denied, the Appellate Court before
which any statement in sale deeds is relied ought to have given an opportunity to lead
evidence in rebuttal or to explain the admission. Opportunity to explain the admission
contained in the sale deeds was necessary to be given to the contesting party in the
facts of the present case. Court thus is of the opinion that the High Court erred in
simultaneously proceeding with the hearing of the appeal after admitting additional
evidence on record. The High Court ought to have given opportunity to contesting
respondents in the First Appeal to lead evidence in rebuttal or to explain the alleged
admission as contained in the sale deed, which having not been done, the order and
judgment of the High Court deserves to be set aside. The High Court may now proceed
to decide the appeal afresh after giving an opportunity to the present appellant to lead
evidence in rebuttal. Akhilesh Singh alias Akhileshwar Singh V. Lal Babu Singh, (2018) 4
SCC 659
O. 51 R. 31 – Division Bench dismissing LPA cursorily without dealing with any issue
arising in the case as also the arguments arising in the case as also the arguments
urged by the parties in support of their case – Not in conformity with O. 51 R. 31
Indeed, in the absence of any application of judicial mind to the factual and
legal controversy involved in the appeal and further without even mentioning the
factual narration of the case set up by the parties, the findings of the two Courts as to
how they dealt with the issues arising in the case in their respective jurisdiction and
without there being any discussion, appreciation, reasoning and categorical findings
on the issues and why the findings of two Courts below deserve to be upheld or
reversed, while dealing with the arguments of the parties in the light of legal principles
applicable to the case, it is difficult for this Court to sustain such order of the Division
Bench. In our opinion, the disposal of the LPA by the Division Bench of the High Court
cannot be said to be in conformity with the requirements of Order 41 Rule 31 of the
Code of Civil Procedure, 1908(hereinafter referred to as "the Code").
Time and again, this Court has emphasized on the Courts the need to pass
reasoned order in every case which must contain the narration of the bare facts of the
case of the parties to the lis, the issues arising the case, the submissions urged by the
parties, the legal principles applicable to the issues involved and the reasons in
support of the findings on all the issues in support of its conclusion. It is really
unfortunate that the Division Bench failed to keep in mind this principle while
disposing of the appeal and passed a cryptic and unreasoned order. Such order
undoubtedly caused prejudice to the parties because it deprived them to know the
reasons as to why one party has won and other has lost. We can never countenance
the manner in which such order was passed by the High Court which has compelled us
to remand the matter to the High Court for deciding the appeal afresh on merits. G.
Saraswathi V. Rathinammal 2018 (3) Supreme 196
Constitution of India:
Allocation of Work, Roster and Benches—Supreme Court and High Courts—
Constitution of Benches, allocation of work and preparation of roster—Convention
instead of any set procedure—Apprehension that exercise of powers by Chief Justice
in absence of any set procedure for constitution of Benches and preparation of roster
might turn arbitrary, held, not tenable
There cannot be any presumption of mistrust against Chief Justice of India.
Considering, oath of office, constitutional position, constitutional trust behind nature
of entrustment of authority to Chief Justice of Supreme Court of India, there cannot be
any presumption of mistrust.
Conventions in various High Courts provide a guideline for allocation of work.
Roster indicates subject-matter to be assigned to each Bench. Scope of diverse factors
and considerations which Chief Justice of High Court may have to consider while
preparing roster indicated and discussed. For instance Chief Justice may have to keep
in mind specilisation of each Judge, prioritization of work, inflow of work and arrears
and at same time that a newly appointed Judge may be rotated in various Benches of
law. Even with regard to Supreme Court of India some conventions adopted by High
Courts are relevant, subject to modifications having regard to institutional
requirements. Asok Pande V. Supreme Court of India, (2018) 5 SCC 341
Art. 19(1)(a) – Demonstrations and bandhs – Creating public disturbances or operating
as nuisances, or creating or manifestly threatening some tangible public or private
mischief – Not protected – Such demonstrations and bandh become an offence
punishable under law.
Art. 19 of the Constitution of India guarantees some of most important
fundamental rights to the citizens. Article 19 protects important attributes of personal
liberty. Right to freedom of speech and expression as guaranteed under Article
19(1)(a) and the right to assemble peaceably and without arms as protected by Article
19(1)(b) are the rights which in reference to the present case have importance. The
right of freedom of speech and expression coupled with right to assemble peaceably
and without arms are rights expression of which are reflected in carrying
demonstration on several occasions. Freedom to air once view is the 36 life line of any
democratic institution. The word freedom of speech must be broadly construed to
include right to circulate once view by word or mouth or through audio visual
instrument. Right of public speech is one form of expression which is also a part of
freedom of speech and expression. Demonstrations are also a mode of expression of
the rights guaranteed under Article 19(1)(a). Demonstrations whether political,
religious or social or other demonstrations which create public, disturbances or
operate as nuisances, or create or manifestly threaten some tangible public or private
mischief, are not covered by protection under Article 19(1). A demonstration might
take the form of an assembly and even then the intention is to convey to the person or
authority to whom the communication is intended the feelings of the group which
assembles. From the very nature of things a demonstration may take various forms; "it
may be noisy and disorderly", for instance stone-throwing by a crowd may be cited as
an example of a violent and disorderly demonstration and this would not obviously be
within Article 19(1)(a) or (b). We in the present case are concerned with the
demonstrations and the bandh call given by GJM.
From the above, it is clear that Article 19(1) (a) and (b) gives constitutional
right to all citizens freedom of speech and expression which includes carrying out
public demonstration also but public demonstration when becomes violent and
damages the public and private properties and harm lives of people it goes beyond
fundamental rights guaranteed under Article 19(1) and becomes an offence
punishable under law. Bimal Gurung V. Union of India 2018 (2) Supreme 644
Art. 19(1)(A)—Right to information/Right to know—Scope of
Information regarding sources of income of electoral candidates/legislators
and their associates would help voter to make informed choice and hence, is part of is
fundamental right. Disclosure of movable and immovable assets already being a
requirement under Form 26 as subs. w.e.f. 1.8.2012. Lok Prahari through its General
Secretary V. Union of India, (2018) 4 SCC 699
Art. 21—Constitutional value of euthanasia—Considered having regard to theological,
philosophical and constitutional models
While discussing a particular norm of law, the law per se is to be applied and,
generally speaking, it is not the function of the Courts to look into the moral basis of
law. At the same time, some legal norms, particularly those which are jurisprudentially
expounded by the Courts or developed as common law principles, would have moral
backing behind them. In that sense moral aspects of an issue may assume relevance.
This relevancy and rationale is quite evident in the discussion about euthanasia. In
fact, the very concept of dignity of life is substantially backed by moral
overtones. Though western thinkings is that the concept of human dignity has 2500
years’ history, in many eastern civilizations including India human dignity as core
human value was recognized thousands of years ago. Common Cause (A Registered
Society) V. Union of India, (2018) 5 SCC 1
Art. 21—Euthanasia – Meaning—Intentional premature termination of life of another
person at his/her request to cause “good death”—Euthanasia—Types—Active,
passive, voluntary, non-voluntary and involuntary
Euthanasia is basically an intentional premature termination of another
person’s life either by direct intervention (active euthanasia) or by withholding life-
prolonging measures and resources (passive euthanasia) either at the express or
implied request of that person (voluntary euthanasia) or in the absence of such
approval/consent (non-voluntary euthanasia).
There is an inherent difference between active euthanasia and passive
euthanasia as the former entails a positive affirmative act, while the latter relates to
withdrawal of life-support measures or withholding of medical treatment meant for
artificially prolonging life. In active euthanasia, a specific overt act is done to end the
patient’s life whereas in passive euthanasia, something is not done which is necessary
for preserving a patient’s life. Passive euthanasia fundamentally connotes absence of
any overt act either by the patient or by the doctors. It is avoidance of unnecessary
intrusion in the physical frame of a person, for the inaction is meant for smooth exit
from life. It is paramount for an individual to protect his dignity as an inseparable part
of the right to life which engulfs the dignified process of dying sans pain, sans suffering
and, most importantly, sans indignity. It is due to this difference that most of the
countries across the world have legalized passive euthanasia either by legislation or by
judicial interpretation with certain conditions and safeguards.
It is perhaps due to the distinction evolved between these two forms of
euthanasia, which has gained moral and legal sanctity all over, that most of the
countries today have legalized passive euthanasia either by way of legislations or
through judicial interpretation but there remains uncertainty whether active
euthanasia should be granted legal status.
The Court in Aruna Shanbaug case had drawn further distinction between
voluntary euthanasia and non-voluntary euthanasia in the sense that voluntary
euthanasia is where the consent is taken from the patient and non-voluntary
euthanasia is where the consent is unavailable, for instances when the patient is in
coma or is otherwise unable to give consent. Describing further about active
euthanasia, the Division Bench had observed that the said type of euthanasia involves
taking specific steps to cause the patient‘s death such as injecting the patient with
some lethal substance, i.e., sodium pentothal which causes, in a person, a state of
deep sleep in a few seconds and the person instantly dies in that state. The Court
further categorized passive euthanasia into voluntary passive euthanasia and non-
voluntary passive euthanasia. The voluntary passive euthanasia has been described as
a situation where a person who is capable of deciding for himself decides that he
would prefer to die because of various reasons whereas non-voluntary passive
euthanasia has been described to mean that a person is not in a position to decide for
himself e.g. if he is in coma or PVS. Common Cause (A Registered Society) V. Union of
India, (2018) 5 SCC 1
Art. 32 – Proper investigation / quashing of FIRs lodged in different parts of country.
This petition has been filed for directing proper investigation in FIRs lodged in
different parts of the country in 2013-14.
Relief of proper investigation into/quashing of FIR should be sought before
jurisdictional High Court. Writ petition under Art. 32 is not maintainable.
We are of the view that in the facts and circumstances of the present case, this
petition under Art. 32 of the Constitution ought not to be entertained. The remedy of
the petitioners for seeking quashing of the FIRs, or such other reliefs as they may be
advised to seek must necessarily be addressed before the jurisdictional High Court. No
case for entertaining a writ petition under Art. 32 has been made out. Saraswati Singh
V. Shailesh Singh 2018 (2) Supreme 518
Art. 136—Exercise of power under, by Supreme Court—Relief—Re-appreciation
evidence—When permissible
In exercise of jurisdiction under Article 136, the Supreme Court does not
normally reappreciate the evidence and findings of fact; but where the findings of the
High Court are perverse or the findings are likely to result in excessive hardship, the
Supreme Court would not decline to interfere merely on the ground that findings in
question are findings of fact. For a contract of Rs. 7.76 crores under original PAC
amount and revised PAC amount of Rs. 10.40 crores, the appellant Board had paid Rs
56.58 crores and additionally Rs 5 crores by order of the Court. In the present case,
held, if the judgment of the High Court was to be sustained, the Board would have to
make a total payment of about Rs 100 crores, causing huge loss to the appellant which
would ultimately be passed on to the consumers and the impugned judgment was
liable to be set aside. Kerala State Electricity Board V. Kurien E. Kalathil, (2018) 4 SCC
793
Arti. 226 – Delay and latches – Mere repeated representations – Not sufficient
explanation for delay
Mere repeated filing of representations could not be sufficient explanation for
delay in approaching the Court for grant of relief, was considered in Gandhinagar
Motor Transport Society vs. State of Bombay, A.I.R. 1954 Bombay 202, by Chief Justice
Chagla, observing as follows :
"(2)...... Now, we have had occasion to point out that the only delay which this
Court will excuse in presenting a petition is the delay which is caused by the
petitioner pursuing a legal remedy which is given to him. In this particular case
the petitioner did not pursue a legal remedy. The remedy he pursued was
extralegal or extrajudicial. Once the final decision of government is given, a
representation is merely an appeal for mercy or indulgence, but it is not
pursuing a remedy which the law gave to the petitioner..."
The appellant, in its counter affidavit before the High Court, had specifically
taken the objection that the claim was highly belated, and that any direction for a
retrospective consideration would have a destabilising effect in unsettling the settled
position which would lead to complete chaos apart from other administrative
consequences. The High Court failed to consider the objection. In Union of India vs.
M.K. Sarkar, (2010) 2 SCC 59, this Court observed as follows:"
16. A court or tribunal, before directing 'consideration' of a claim or
representation should examine whether the claim or representation is with
reference to a 'live' issue or whether it is with reference to a 'dead' or 'stale'
issue. If it is with reference to a 'dead' or 'stale' issue or dispute, the
court/tribunal should put an end to the matter and should not direct
consideration or reconsideration...."
Union of India V. Chaman Rana 2018 (4) Supreme 105
Art. 226—Review of orders passed under Art. 226—Scope of—Contrasted with
appellate power
In this case, order in review application runs into 10 pages whereas order in
appeal runs into 6 pages. Such approach of Division Bench while deciding appeal and
review application cannot be countenanced. Scope of appellate powers and review
powers is well defined. Power of review under Or. 47 R. 1 CPC is very limited and it
may be exercised only if there is a mistake or an error apparent on face of record.
Power of review is not to be confused with appellate power. Review
petition/application cannot be decided like a regular inter-court appeal. On other
hand, scope of appeal is much wider wherein all issues raised by parties are open for
examination by appellate court. A fortiori, what was not decided in appeal by Division
Bench could not be decide by Division Bench while deciding review application. It is for
this reason, constrained to set aside review order. Sivakami V. State of Tamil Nadu,
(2018) 4 SCC 587
Art. 226 – Power of judicial review cannot be invoked to protect private interest by
ignoring public interest
If the decision relating to award of contract is in public interest, the Courts will
not, in exercise of the power of judicial review, interfere even if a procedural
aberration or error in awarding the contract is made out. The power of judicial review
will not be permitted to be invoked to protect private interest by ignoring public
interest.
Attempts by unsuccessful bidders with an artificial grievance and to get the
purpose defeated by approaching the Court on some technical and procedural lapses,
should be handled by Courts with firmness. The exercise of the power of judicial
review should be avoided if there is no irrationality or arbitrariness. In the matter on
hand, we do not find any illegality, arbitrariness, irrationality or unreasonableness on
the part of the expert body while in action. So also, we do not find any bias or mala
fides either on the part of the corporation or on the part of the technical expert while
taking the decision. Municipal Corporation, Ujjan V. BVG India Limited 2018 (4)
Supreme 12
Writ of “habeas corpus” – Purpose of – To ensure that no one is deprived of his / her
liberty without sanction of law
Thus, the pivotal purpose of the said writ is to see that no one is deprived of
his/ her liberty without sanction of Law. It is the primary duty of the State to see that
the said right is not sullied in any manner what so ever and its sanctity is not affected
by any kind of subterfuge. The role of the Court is to see that the detenue is produced
before it, find out about his / her independent choice and see to it that the person is
released from illegal restraint. A major can enter into a matrital relationship of choice
– Parental love or concern cannot be allowed to fluster the right of choice of an adult
in choosing a man to whom she get married – High Court should have directed that
she was free to go where she wished to – Concerns like social radicalization are
absolutely unnecessary in a case of Habeas Corpus – Similarly, apprehension of Hadiya
being taken out of country was not within arena of jurisdiction of writ of Habeas
corpus. Shafin Jahan V. Asokan K.M. 2018 (4) Supreme 144
Court Fees Act:
Sec. 13—Refund of fee paid on memorandum of appeal in case of remand—Directed
to be refunded where matter is remanded to court below (i.e. Reference Court) for
fresh adjudication on merits
In this case, Court has remanded these cases to the Reference Court
for fresh adjudication on merits in accordance with law, the appellants
(landowners) are entitled to get back the amount of court fee paid by each
appellant (landowner) on his appeal memo before the High Court as also
before this Court as provided under Section 13 of the Court Fees Act.
The Registry is accordingly directed to issue necessary certificate
of refund of Court Fee amount, if paid by any of the landowner on his
memo of appeal in the High Court and in this Court under the Court Fees
Act to enable the landowners to claim the refund of the court fee amount
from the concerned State Treasury.
If for any reason, it is not possible for the Registry of this Court to
issue refund certificate of the Court Fee amount paid by the landowners
(appellants) on their memo of appeals filed in the High Court on their
respective appeal memo then the requisite certificate shall be issued by the
concerned High Court as per the Rules in favour of each appellant
(landowner) under the Court Fees Act. Surender Singh V. State of
Haryana, (2018) 3 SCC 278
Criminal Jurisprudence:
Transfer of investigation – Only in rare and exceptional cases where necessary to do
justice between the parties and instill confidence in public or where investigation by
State police lacks credibility
The law is thus well settled that power of transferring investigation to other
investigating 34 agency must be exercised in rare and exceptional cases where the
Court finds it necessary in order to do justice between the parties to instil confidence
in the public mind, or where investigation by the State Police lacks credibility. Such
power has to be exercised in rare and exceptional cases. In K.V. Rajendran vs.
Superintendent of Police, CBCID South Zone, Of Police, (2013) 12 SCC 480, this Court
has noted few circumstances where the Court could exercise its constitutional power
to transfer of investigation from State Police to CBI such as: (i) where high officials of
State authorities are involved, or (ii) where the accusation itself is against the top
officials of the investigating agency thereby allowing them to influence the
investigation, or (iii)where investigation prima facie is found to be tainted/biased.
Bimal Gurung V. Union of India 2018 (2) Supreme 644
Criminal Procedure Code:
Sec. 54-A r/w Sec. 65B, Evidence Act – Videography of scene of crime scene of
recovery – Use of new technology should not be denied – Adequate care should be
taken to rule out tampering.
In Ram Singh and Others v. Col. Ram Singh, 1985 (Supp) SCC 611, a Three-
Judge Bench considered the said issue. English Judgments in R. v. Maqsud Ali, (1965) 2
All ER 464, and R. v. Robson, (1972) 2 ALL ER 699, and American Law as noted in
American Jurisprudence 2d (Vol.29) page 494, were cited with approval to the effect
that it will be wrong to deny to the law of evidence advantages to be gained by new
techniques and new devices, provided the accuracy of the recording can be proved.
Such evidence should always be regarded with some caution and assessed in the light
of all the circumstances of each case. Electronic evidence was held to be admissible
subject to safeguards adopted by the Court about the authenticity of the same. In the
case of tape-recording it was observed that voice of the speaker must be duly
identified, accuracy of the statement was required to be proved by the maker of the
record, possibility of tampering was required to be ruled out. Reliability of the piece of
evidence is certainly a matter to be determined in the facts and circumstances of a fact
situation. However, threshold admissibility of an electronic evidence cannot be ruled
out on any technicality if the same was relevant. (4) In Tukaram S. Dighole v. Manikrao
Shivaji Kokate, (2010) 4 SCC 329, the same principle was reiterated. This Court
observed that new techniques and devices are order of the day. Though such devices
are susceptible to tampering, no exhaustive rule could be laid down by which the
admission of such evidence may be judged. Standard of proof of its authenticity and
accuracy has to be more stringent than other documentary evidence. Shafhi
Mohammad V. The state of Himachal Pradesh 2018 (2) Supreme 545
Sec. 125—Maintenance—Grant of—Set aside by High Court, on ground that appellant
failed to prove that she was wife of respondent—Parties directed by Supreme Court to
go for DNA test
The appellant approached this Court aggrieved by the judgment dated
27.5.2014 passed by the High Court of Gauhati in Subudh Das v. Pratima Das, 2014 SCC
On Line Gau 669. The order in favour of the appellant u/S. 125 CrPC granting
maintenance @ Rs 4000 per month from the month of September 2013, has been set
aside, mainly on the ground that the appellant failed to prove that she was the wife of
respondent Subudh Das. According to the appellant, the respondent had fathered
three children in her though the same was denied by the respondent.
Hence, by order dated 28.2.2017 (Pratima Das v. Subhudh Das, SLP (Cri) No.
7877), Court directed the parties to go for a DNA test. The report of the DNA test has
been forwarded to us. It is reported that the respondent is the father of the three
children born to the appellant. In the above circumstances, Court set aisde the
impugned order passed by the High Court and restore the order dated 4.9.2013
passed by the Sub-Divisional Judicial Magistrate. Pratima Das alias Arati Das V. Subudh
Das, (2018) 4 SCC 528
Sec. 154 – Delay – If proper explained – cannot fatal the prosecution
It is no doubt that there is a delay of about 30 hours in lodging the first
information. The incident had taken place at 11:30 p.m. on 14.10.1973 and the first
information was lodged at 4:00 a.m. on 16.10.1973. In our considered opinion, the
prosecution has fully and satisfactorily explained the delay in lodging the first
information. PW11 is a resident of a remote village and she was an illiterate and poor
lady.
Besides, she had personally seen her son being throttled and being taken away
by the accused persons. She was threatened with dire consequences by one of the
accused, namely Shesh Badan Singh, who was holding a gun. Not even a suggestion is
made by the defence that the family of the deceased was powerful or influential. Even
a suggestion is not made that they are rich people. Under such circumstances, the trial
Court and the High Court are justified in taking into consideration all the relevant
factors including the explanation offered by the informant as well as PW15 to
conclude that the prosecution had proved satisfactorily the reasons for delay in
lodging the first information. Kameshwar Singh V. State of Bihar 2018 (3) Supreme 550
Sec. 156 (3) – Directing investigation – Magistrate has to apply mind.
After discussing various other pronouncements, it was concluded that even
while directing an inquiry under Section 156(3) of the Cr.P.C., the Magistrate applies
his judicial mind to the complaint and therefore, it would amount to taking cognizance
of the matter. Manju Surana V. Sunil Arora 2018 (4) Supreme 291
Sec. 167(2) and Sec. 173—Right to default bail if charge-sheet not filed within
prescribed period, in this case 90 days—When accrues/becomes invocable
State first filing application for extension of time for filing charge-sheet, that
too prior to expiry 90 days, thereafter accused filing prayer for bail u/S. 167(2) r/w S.
21(2)(b) MCOCA. Held, only upon rejection of prayer for extension of time sought for
filing charge-sheet, right in favour of accused for grant of statutory bail u/S. 167(2) r/w
S. 21(2)(b) MCOCa could have ignited. Unless prayer for extension of time rejected, no
right would accrue in favour of accused much less to consider his application for grant
of statutory bail. In such cases it is duty of court to first deal with prayer of extension
of period to file charge-sheet. Further during pendency of prayer for extension of time
for filing charge-sheet, supplementary charge-sheet was filed. Accused in meantime
was being remanded to judicial custody. Therefore, High Court not granting relief to
accused on this count upheld. Rambeer Shokeen V. State (NCT of Delhi), (2018) 4 SCC
405
Sec. 173 – Court can constitute SIT when investigation is not fair and the investigating
agency is hand in glove with the accused.
In the judgment passed by the sessions court in Criminal Case No. 221 of 2001,
the court has categorically observed that the investigation has not been conducted
fairly. It is evident that the real culprits responsible for murder for petitioners’ family
have not been subjected to trial. It is clear that the investigating agency showed
lackadaisical approach in carrying / proceeding with the investigation. We are of the
view that it is necessary to have a fair, honest and complete investigation.
We direct the SIT to proceed as regards further investigation in respect of FIR
No. 221 of 2001 and to submit its report within a period of three months from today.
Smt. Sunita Devi V. Union of India 2018 (3) Supreme 444
Sec. 195(1) – Fraud in document – Offence of fraud committed earlier than producing
/ filing the document in court – Neither covered under Clauses (1), (b)(i)or (b)(ii) of
Sec. 195 – More so when such withdrawal not prejudicial to appellant
There being specific case of the appellant in his complaint as well as in order
passed by the District Judge in his favour, it is not open for the appellant now to turn
round and claim that allegations are covered under Section 195(1)(b) (i). There is one
more reason due to which the above submission cannot be accepted. The 16
Constitution Bench elaborately noticing the statutory scheme under Section 195 has
held that where offences has already been committed earlier and later on the
document is produced or given in the evidence in Court, the same is neither covered
under Clauses (a), (b)(i) or (b) (ii). In Para 10, Constitution Bench made following
observations:-
"10. The scheme of the statutory provision may now be examined. Broadly,
Section 195 CrPC deals with three distinct categories of offences which have been
described in clauses (a), (b)(i) and (b)(ii) and they relate to (1) contempt of lawful
authority of public servants, (2) offences against public justice, and (3) offences
relating to documents given in evidence. Clause (a) deals with offences punishable
under Sections 172 to 188 IPC which occur in Chapter X IPC and the heading of the
Chapter is - "Of Contempts of the Lawful Authority of Public Servants".
These are offences which directly affect the functioning of or discharge of
lawful duties of a public servant. Clause (b)(i) refers to offences in Chapter XI IPC which
is headed as - "Of False Evidence and Offences Against Public Justice". The offences
mentioned in this clause clearly relate to giving or fabricating false evidence or making
a false declaration in any judicial proceeding or before a court of justice or before a
public servant who is bound or authorised by law to receive such declaration, and also
to some other offences which have a direct correlation with the proceedings in a court
of justice (Sections 205 and 211 IPC).
This being the scheme of two provisions or clauses of Section 195 viz. that the
offence should be such which has direct bearing or affects the functioning or discharge
of lawful duties of a public servant or has a direct correlation with the proceedings in a
court of justice, the expression "when such offence is alleged to have been committed
in respect of a document produced or given in evidence in a proceeding in any court"
occurring in clause (b)(ii) should normally mean commission of such an offence after
the document has actually been produced or given in evidence in the court.
The situation or contingency where an offence as enumerated in this clause
has already been committed earlier and later on the document is produced or is given
in evidence in court, does not appear to be in tune with clauses (a) (i) and (b)(i) and
consequently with the scheme of Section 195 CrPC. This indicates that clause (b)(ii)
contemplates a situation where the offences enumerated therein are committed with
respect to a document subsequent to its production or giving in evidence in a
proceeding in any court."
It is also on the record that legal heirs of the decree holders have also
withdrawn their execution application, which has attained finality.
None of the appellants, who had filed Appeal No.91 of 2004 before the High
Court has initiated any proceeding against the present respondent N.M. Dessai, who
was their advocate. It is only the appellant, who was respondent in Appeal No.91 of
2004 has filed a complaint under Section 195. The High Court having taken into
consideration entire facts and circumstances have rightly come to the conclusion that
present is not a case where any complaint could have been proceeded under Section
195(1)(b)(i) Cr.P.C.
We thus fully endorse the view of the High Court that present is not a case
where any complaint could have been proceeded with under Section 195(1)(b)(ii). We
thus do not find any merit in this appeal and the same is dismissed. Vishnu Chandru
Gaonkar V. N.M. Dessai 2018 (2) Supreme 499
Sec. 197 – Order u/s 197 vitiated as appellant, on whose application order u/s 193 was
passed, was a necessary party and was not impleaded.
In our considered opinion, the Single Judge seemed to have passed the
impugned order without application of judicial mind inasmuch as he committed two
glaring errors while passing the order. First, he failed to see that the complainant at
whose instance the Sessions Judge had passed the order and had allowed his
application under Section 193 of the Code was a necessary party to the criminal
revision along with the State. Therefore, he should have been impleaded as
respondent along with the State in the revision. In other words, the Complainant also
had a right of hearing in the Revision because the order impugned in the Revision was
passed by the Session Judge on his application. This aspect of the case was, however,
not noticed by the Single Judge. Madan Mohan V. State of Rajasthan 2018 (4) Supreme
1
Sec. 197 – Revisional Jurisdiction – High Court directing Sessions Judge to consider bail
application of respondents and “allow” it on the “same day” – Impermissible
In this case, the Single Judge grossly erred in giving direction to the Sessions
Judge to consider the bail application of respondent Nos. 2 and 3 and “allow” it on the
“same day”.
No superior Court in hierarchical jurisdiction can issue such direction /
mandamus to say subordinate Court commanding them to pass particular order on
any application filed by any party. The judicial independence of every Court in passing
the orders in cases is well settled. It cannot be interfered with by any Court including
superior Court.
It is this reason, in our view, such directions were wholly uncalled for and
should not have been given. This court cannot countenance issuing of such direction
by the High Court. Madan Mohan V. State of Rajasthan 2018 (4) Supreme 1
Sec. 313 – Appellant not explaining circumstances against him – Merely denying his
involvement in the crime not enough – Appellant rightly convicted.
In our opinion, it was necessary for the appellant to have explained the
aforementioned circumstances appearing against him in the proceedings under
Section 313 of the Code. The appellant, however, failed to explain any circumstances
and denied his involvement in the crime.
We find from the evidence eight circumstances appearing against the
appellant. These circumstances are: First motive was against the deceased due to his
not agreeing to the proposal of marriage of Kumar with his daughter; Second, the
appellant and Kumar, both being the cousins, knew each other very well; Third, both
went together to the house of the deceased to invite him for a dinner at Kumar's
house; Fourth, all the three had dinner together at Kumar's house; Fifth, Murugan died
immediately after dinner; Sixth, Kumar gave his confessional statement; Seventh,
recovery of weapon and cloths at the instance of Kumar; and Eighth, the dead body
was found lying near iron cot where Murugan(deceased) had last dinner with Kumar
and the appellant.
A theory of "accused last seen in the company of the deceased" is a strong
circumstance against the accused while appreciating the circumstantial evidence. In
such cases, unless the accused is able to explain properly the material circumstances
appearing against him, he can be held guilty for commission of offence for which he is
charged. In this case, it was rightly held by the two Courts below against the appellant
and we find no good ground to disturb this finding. Murugan V. State of Tamil Nadu
2018 (4) Supreme 545
Ss. 357(2), 389 – Payment of compensation out of fine – Fine to be utilized for
compensating different circumstances u/s 357 (1) – Compensation not to be paid till
appeal is decided.
The sentence awarded by the Court including sentence of fine is in no way
affected by embargo contained in Section 357(2) Cr.P.C. The operation of Section
357(2) Cr.P.C. is restricted to payment of compensation as contemplated by Section
357(1) and (3) Cr.P.C. The heading of the Section 357 Cr.P.C. i.e. "Order to pay
compensation" as well as contents of the Section lead to only one conclusion that the
entire provision has been engrafted regarding payment of compensation out of the
fine imposed or when Court imposes sentence the fine is not part of which, the Court
may by way of compensation direct payment of such amount to a person who has
suffered the injury. We, thus, are of the view that Section 357 Cr.P.C. has nothing to
do with suspension of sentence awarded by the trial court and the sentence of fine
imposed on the accused is in no way affected by Section 357(2).
What is the purpose and object of subSection (2) of section 357 Cr.P.C.?
Section 357(1) Cr.P.C. contemplated utilisation of fine imposed in certain
circumstances as compensation to be paid to victim. Subsection (2) engrafted 26 an
embargo that such payment shall not be made till the period allowed for appeal has
elapsed or if the appeal is filed, till the same is decided. Legislature was conscious that
compensation paid if utilised, there may not be appropriate measures to recover the
said amount utilised from victim to whom the compensation is paid hence embargo in
payment has been engrafted in subsection (2). Thus at best subsection (2) of Section
357 Cr.P.C. is a provision which differs or withholds the utilisation of the amount of
compensation awarded till the limitation of appeal elapses or if filed till it is decided.
The provision in no manner stays the sentence of fine during the pendency of the
appeal. The purpose for which subsection (2) of Section 357 Cr.P.C. has been enacted
is different as noted above and it never contemplates as stay of sentence of fine
imposed on accused. Cr.P.C.Satyendra Kumar Mehra @ Satendera Kumar Mehra V.
State of Jharkhand 2018 (3) Supreme 531
Sec. 389 – Appellate court can suspend sentence of imprisonment as well as of fine
with or without conditions.
We, however, make it clear that Appellate Court while exercising power under
Section 389 Cr.P.C. can suspend the sentence of imprisonment as well as of fine
without any condition or with conditions. There are no fetters on the power of the
Appellate Court while exercising jurisdiction under Section 389 Cr.P.C.. The Appellate
Court could have suspended the sentence and fine both or could have directed for
deposit of fine or part of fine. Satyendra Kumar Mehra @ Satendera Kumar Mehra V.
State of Jharkhand 2018 (3) Supreme 531
Sec. 439- Bail –Refusal to grant- Appellant has been refused bail by the High Court –
After the impugned order was passed, bail was granted to two remaining co-accused-
Whether impugned order of the High Court refusing bail to appellant, is liable to be set
aside- Held, Yes- The Court remits the matter to the High Court for fresh consideration
The appellant is aggrieved since he has been refused bail by the
High Court. It is not necessary to go into the factual details as it is brought
to our notice that after the impugned order was passed, bail was granted to
two remaining co-accused. Learned senior counsel appearing on behalf of
the appellant submits that the matter may be remitted to the High Court so
that the High Court may get an opportunity to consider the matter afresh
in view of the subsequent developments. Court find no reason to refuse
such a request. Accordingly, the impugned order is set aside and the
matter is remitted to the High Court for fresh consideration. The parties
are at liberty to raise all the contentions which they have raised in this
petition before the High Court. Kishanlal Bholuram Kumbhar
@Kishan Prajapati V. The State of Gujarat, 2018 (7) Scale 461
Sec. 439—Grant of bail—Foreign citizen—Against established tenets of bail
jurisprudence—Effect of
A prima facie case is made out against Respondent 1, as the ground of persons
were seen committing offence using deadly weapons and sticks. Seriousness and
gravity of offence was clearly observed from CD present in the material available on
record. However, aforesaid observations are not be constructed as findings on merits.
Though Respondent 1 is not a citizen of India (being British national), yet fact remains
that he along with other persons, indulged in the criminal activity. Case of prosecution
mainly revolves around him, as he alleged to be the kingpin of criminal conspiracy
which demands his custodial interrogation. In such circumstances, it is unfortunate
that High Court did not appreciate facts of case with prudent legal perception. There is
no reason to accord any special consideration for Respondent 1 by virtue of a simple
fact that he is a citizen of different country. Law u/s. 439 CrPC is very clear and in the
eye of the law every accused is the same irrespective of their nationality. Apart from
above, instant case is not an appeal seeking cancellation of bail in any sense, rather,
instant case calls for legal sustainability of impugned order granting bail to
respondent- accused. Difference between cancellation of bail and a legal challenge to
order granting bail for non-consideration of material available on record, is a settled
proposition. To clarify, there is no ground pleaded herein that a supervening event
breaching bail conditions is raised. Lachhman Dass V. Resham Chand Kaler, (2018) 3
SCC 187
Ss. 439 and 438—Grant of bail by trial court, on mandatory orders of High Court,
commanding subordinate court to compulsorily grant bail—Abuse of process by
accused—Such mandatory directions cannot be issued by courts, which breach
independence of subordinate courts
It is unfortunate to note that the order of the High Court on the first instance
clearly points out that it has virtually directed the course of action to be undertaken by
the subordinate court. It is not expected from the High Court to pass such mandatory
orders commanding the subordinate court to compulsorily grant bail. The Court on
similar facts in Madan Mohan v. State of Rajasthan, (2018) 12 SCC 30, has laid down
that courts cannot issue mandatory directions which breach the independency of
subordinate court. Therefore, such circuitous method undertaken by the respondent
in obtaining a bail is a gross abuse of the court process undertaken in bad faith.
Moreover, our attention is drawn to the fact that he was declared as a proclaimed
offender before the grant of bail, which was not taken into consideration by the High
Court. In the light of the above, Court allows the appeal, set aside the order of the
High Court and direct the authorities concerned to take Respondent 1 herein into
custody forthwith. Lachhman Dass V. Resham Chand Kaler, (2018) 3 SCC 187
Sec. 482—Quashment of FIR—S. 482 has to be cautiously utilized while quashing FIR
In light of the fact that the enquiry was pending and there are aspects which
may require investigation, Court is of the considered opinion that the High Court erred
in quashing the FIR at the threshold itself without allowing the investigation to
proceed. Court cannot agree with the reasons provided under the impugned judgment
concerning certain factual assertions made by the respondents as to the condition of
the deceased and reasons for committing suicide because acceptance of the said
would not be in consonance with the settled jurisprudence under Section 482 CrPC as
laid down by various judgments of this Court.
It would be relevant to note that any observation made herein should not be
taken as observations on merits and Court directs the investigating authority as well as
the Court to consider the matter on its own merits uninfluenced by any observation
herein.
Therefore, Court set aside the impugned judgment and direct the investigating
authorities to complete the investigation with promptness and to take it to its logical
conclusion. Accordingly, these appeals are allowed. Munshiram V. State of Rajasthan,
(2018) 5 SCC 678 : 2018 (3) Supreme 557
Criminal Trial:
Appreciation of evidence
Behaviour of the witnesses or their reactions would differ from situation to
situation and individual to individual. Expecting uniformity in their reactions would be
unrealistic, and no hard and fast rule can be laid down as to the uniformity of the
human reaction. The evidence of the three eyewitnesses cannot be faulted merely
because they ran away. Kameshwar Singh V. State of Bihar 2018 (3) Supreme 550
A person cannot be convicted unless his role and involvement in the incident is
established beyond reasonable doubt.
The incident is of 1998 and we are in 2018. In other words, it is now almost 20
years have passed that this litigation is pending in various Courts.
There were seven injuries noticed by the doctor on the body of injured-Tej
Singh but the injuries noticed were not very serious in nature as would be clear from
the Doctor's report mentioned above.
Tej Singh survived leaving no disability much less permanent on his body due
to causing of the injuries and lived for twenty years after the date of alleged incident
and died recently in last week as was stated by learned counsel for the appellants.
All the appellants were first offender and were not found involved in any
criminal activity in the last 20 years, though remained on bail throughout and lastly,
appellant Nos. 2 and 3 are reported to be in Government Service.
For all these aforementioned reasons, which are relevant in the facts of this
case, we are inclined to interfere only in the quantum of jail sentence awarded by the
High Court and reduce their jail sentence to the sentence already undergone and at
the same time consider it just and proper to enhance the fine amount imposed by the
High Court on appellant Nos.1, 3 and 4.
Having perused both the findings for deciding the role and involvement of
appellant No.2 – Suresh in the incident in question, we are inclined to restore the
finding of the Sessions Judge rather than that of the High Court. In other words, we
find that the role and involvement of appellant No.2 - Suresh is not established beyond
reasonable doubt while inflicting the injuries to Tej Singh and hence, in our view,
appellant No.2-Suresh deserves to be acquitted of the charges leveled against him. He
is on bail because he is reported to be suffering from lung cancer. Naresh V. The State
Of Uttarakhand 2018 (4) Supreme 482
Conviction – Witnesses, by and large, consistent and reliable – No major contradictions
in evidence – Conviction cannot be interfered.
It is a well settled principle of criminal law that some minor contradiction or
inconsistency in evidence cannot be made basis to discard the whole evidence as
unreliable. It is much more so when the two Courts below took note of the said
evidence and discarded it being wholly immaterial. Gorusu Nagaraju s/o Apparao V.
State of Andhra Pradesh 2018 (2) Supreme 765
Evidence of witnesses cannot be discarded merely because they are family members
of deceased.
Merely because the eye-witnesses are family members their evidence cannot
per se be discarded. When there is allegation of interestedness, the same has to be
established. Mere statement that being relatives of the deceased they are likely to
falsely implicate the accused cannot be a ground to discard the evidence which is
otherwise cogent and credible. Relationship is not a factor to affect credibility of a
witness. It is more often than not that a relation would not conceal actual culprit and
make allegations against an innocent person. Ganapathi V. The State of Tamil Nadu
2018(4) Supreme 302
Injuries, Wounds and Weapons—Failure/Non-explanation of injuries on accused—
When material—Principles summarized
Before holding that non-explanation of injuries on persons of accused persons
by prosecution witnesses may affect prosecution case, court has to be satisfied of
existence of two conditions: (i) that injury on person of accused was of a serious
nature; and (ii) that such injuries must have been caused at the time of occurrence in
question. Dashrath Alias Jolo V. State of Chhattisgarh, (2018) SCC 428
Inclusion of another charge in charge sheet – Open to trial court to frame charge u/s
307 at appropriate stage even if charge sheet has been filed, if material on record
justifies it.
Even if chargesheet in respect of the said offence has been filed, it is open to
the Trial Court at the appropriate stage to frame the charge for offence under Section
307 of IPC if the material on record justifies framing of such a charge, including to
amend the charges and also to proceed against other persons appearing to be guilty of
offence. None of the observations made by the High Court in the impugned orders will
be any impediment for the Trial Court to do so. This must assuage the apprehension of
the appellants that even if there is evidence to indicate commission of offence under
Section 307, such a charge has not been framed against the concerned accused. We
leave that question open to be considered by the Trial Court on its own merits and in
accordance with law. Osama Aziz V. State of Uttar Pradesh 2018(4) Supreme 498
Last seen theory – Accused cannot be convicted only on basis of last seen theory in
absence of any other evidence.
It is a settled legal position that the law presumes that it is the person, who
was last seen with the deceased, would have killed the deceased and the burden to
rebut the same lies on the accused to prove that they had departed. Undoubtedly, the
last seen theory is an important event in the chain of circumstances that would
completely establish and/or could point to the guilt of the accused with some
certainty. However, this evidence alone can’t discharge the burden of establishing the
guilt of accused beyond reasonable doubt and requires corroboration.
Navaneethakrishnan V. The State By Inspector Of Police 2018 (4) Supreme 652
Related witnesses – Not necessarily interested witness.
The case of Namdeo v. State of Maharashtra, (2007) 14 SCC 150, wherein this
Court after observing previous precedents has summarized the law in the following
manner:-
It is clear that a close relative cannot be characterized as an 'interested'
witness. He is a 'natural' witness. His evidence, however, must be scrutinized carefully.
If on such scrutiny, his evidence is found to be intrinsically reliable, inherently probable
and wholly trustworthy conviction can be based on the 'sole' testimony of such
witness. Close relationship of witness with the deceased or victim is no ground to
reject his evidence. On the contrary, close relative of the deceased would normally be
most reluctant to spare the real culprit and falsely implicate an innocent one.
Bhaskarrao & Ors. Vs. State of Maharashtra 2018 (4) Supreme 566
Test Identification Parade – Only a corroborative piece of evidence
It is a settled proposition of law that the identification parade of the accused
before the court of law is not the only main and substantive piece of evidence, but it is
only a corroborative piece of evidence. Navaneethakrishnan V. The State By Inspector
Of Police 2018 (4) Supreme 652
Witnesses—Interested/Partisan witness—Evidence of interested witness—
Admissibility—Burden cast upon courts
Held, it is settled law that there cannot be any hard-and-fast rule that
evidence of interested witness cannot be taken into consideration and they cannot be
termed as witnesses. But, the only burden that is cast upon courts in such cases is that
courts have to be cautious while evaluation evidence to exclude possibility of false
implication. Relationship can never be a factor to affect credibility of witness as it is
not possible always to get an independent witness. Sudhakar alias Sudharasan V. State
Represented by the Inspector of Police, Srirangam Police Station, Trichy, Tamil Nadu,
(2018) 5 SCC 435
Custody of a Child – Overall well being of the child has predominant imperative
Overall well being of the child must prevail over the principle of comity of
courts, and the doctrines of “intimate contract and closest concern”. Prateek Gupta V.
Shilpi Gupta 2018 (3) Supreme 368
Doctrine of equity:
Anti-suit injunction – Courts in India competent to issue anti-suit injunction – But
should be granted sparingly especially in case of a foreign court – Sec. 41, Specific
Relief Act, 1963
The marriage between Dinesh Singh Thakur-the appellant-husband and Sonal
Thakur - respondent-wife was solemnized on 20.02.1995 as per Hindu rites and two
children were born out of the said wedlock. The appellant-husband was working in
United States of America (USA) at the time of marriage and he took the respondent-
wife to USA on Dependent Visa. Both the parties got the citizenship of USA in May,
2003. They obtained “PIO” status (Person of India Origin) in June 2003 and “OCI”
status (Overseas Citizens of India) in July 2006.
The appellant – husband filed a petition against the respondent-wife at the
Family Court, Gurgaon which is pending adjudication before the Court, Subsequently,
the respondent-wife filed a petition the Circuit Court of the Sixth Judicial Circuit in and
for Pinellas County, Florida, USA for divorce on the ground of irretrievable breakdown
of marriage and other reliefs. Thereafter, the appellant-husband filed Civil Suit for
permanent injunction and declaration inter alia to restrain the respondent-wife from
pursuing the petition for divorce before the court in USA.
The District Judge, granted ex parte ad interim injunction to the appellant-
husband. The respondent-wife filed an application for vacation and modification of the
order which was allowed. The appellant-husband preferred CR before the High Court
which was dismissed.
Anti-Suit Injunctions are meant to restrain a party to a suit/proceeding from
instituting or prosecuting a case in another court, including a foreign court. Simply put,
an anti-suit injunction is a judicial order restraining one party from prosecuting a case
in another court outside its jurisdiction. The principles governing grant of injunction
are common to that of granting anti-suit injunction. The cases of injunction are
basically governed by the doctrine of equity.
10) It is a well-settled law that the courts in India have power to issue anti-suit
injunction to a party over whom it has personal jurisdiction, in an appropriate case.
However, before passing the order of anti-suit injunction, courts should be very
cautious and careful, and it should be granted sparingly and not as a matter of routine
as such orders involve a court impinging on the jurisdiction of another court, which is
not entertained very easily specially when the it restrains the parties from instituting
or continuing a case in a foreign court.
In Modi Entertainment Networks (supra), this Court has reiterated this
position by holding that the courts in India like Court in England are courts of law and
equity. The principles governing the grant of anti-suit injunction being essentially an
equitable relief; the courts in India have the powers to issue anti-suit injunction to a
party over whom it has personal jurisdiction in an appropriate case; this is because the
courts of equity exercise jurisdiction in personam; this power has to be exercised
sparingly where such an injunction is sought and if not granted, it would amount to
the defeat of ends of justice and injustice would be perpetuated. Dinesh Singh Thakur
V. Sonal Thakur 2018 (4) Supreme 359
Doctrines and Maxims:
Pith and Substance—Doctrine of pith and substance or test of true nature and
character—Manner of applicability
Inevitably a legislation touches upon subjects in other Lists and a strict verbal
interpretation might invalidate many statutes. Further, a mere interpretation of
degree of invasion not enough, hence to ascertain whether an impugned legislation
encroaches upon an entry of another List, its pith and substance or its true nature and
character must be examined or else many legislations might by invalidated. Jayant
Verma V. Union of Inida, (2018) 4 SCC 743
Election Law:
Election process set in motion – No court should interfere
It is not in dispute that the West Bengal State Election Commission
had issued notifications 02.04.2018 for holding 5 panchayat elections in
the State of West Bengal. Thus, the election process has been set into
motion. In view of the decision of this Court, in the case of Bodula
Krishnaiah (supra) wherein it was held that once the election process has
been set in motion, the Court ought not to interfere, we are not inclined to
interfere.
However, the fact remains that according to the newspaper reports filed along
with writ petition which has been referred to by the learned senior counsel for the
petitioner incidence of violence has taken place when the candidates have gone to
obtain and file their nomination papers. This also stands fortified with the notification
dated 05.04.2018 issued by the West Bengal State Election Commission where the
State Election Commission had provided additional venue for filing the nomination
papers.
It is, therefore, essentially for the State Election Commissioner to consider the
grievance once made by any party or/and candidate as the case may be and pass
appropriate order/s keeping in view the nature of grievance made and relevant factors
concerning the election and its process.
We are, therefore, inclined to dispose of this petition by granting liberty to all
political parties, their candidates, including any independent candidate/s proposing to
contest the election in question, to approach the State Election Commissioner with
their any individual or/and collective grievance. Bharatiya Janata Party West Bengal V.
State of West Bengal 2018(4) Supreme 178
Election petition/trial—Statutory requirements as to filing of election petition—
Requirement under rule concerned that “election petition must be accompanied by a
treasury challan of amount of Rs. 1000”—Nature and scope of
Rule 3(5)(d) commands that the election petition shall be accompanied by the
treasury challan. The word used in the Rule is ‘accompanied’ and the term
‘accompany’ means to co-exist or go along. There cannot be a separation or
segregation. The election petition has to be accompanied by the treasury challan and
with the treasury challan, as has been understood, there has to be a deposit in the
treasury. The Rajasthan Treasury Rules, 2012 when understood appropriately, also
convey that there has to be deposit in the treasury. Rule 7(3) of the RMEP Rules, 2009
prescribes in categorical terms that the Election Tribunal shall dismiss the election
petition in case of non-compliance with the provisions of these rules. Rule 7(3) leaves
no option to the Judge but to dismiss the petition. Thus, regard being had to the
language employed in the Rules concerned, it is held that the deposit of treasury
challan which means deposit of the requisite amount in treasury at the time of
presentation of the election petition is mandatory.
Resultantly, once the election petition is presented without the treasury
challan, the decisions of this Court in Charan Lal Sahu, (1973) 2 SCC 530 and Aeltemesh
Rein, (1981) 2 SCC 689 pertaining to non-deposit [holding that an election petition has
to be accompanied by the security deposit as provided in Section 117 of the RP Act,
1951, else the court has no option but to reject the election petition] will have full
applicability herein. The said conclusion is arrived at as there is really no Rule which
prescribes filing of treasury challan before the Election Tribunal in election petition
after seeking permission at the time of presenting an election petition. Permission, if
any, may be sought earlier.
The election petition in the present case was filed on 9.9.2015 but the treasury
challan was not filed on that day. The Election Tribunal had passed an order on a later
date permitting the deposit. Thus, the inevitable conclusion is that no valid election
petition was presented. In such a situation, the Election Tribunal was bound in law to
reject the election petition. Consequently, the order passed by the High Court that has
affirmed the order of the Election Tribunal set aside, a result of which the election
petition shall stand rejected. Sitaram V. Radhey Shyam Vishnav, (2018) 4 SCC 507
Evidence Act:
Ss. 6, 7 and 32 – Dying declaration can be sole basis for conviction if inspiring
confidence
Although there is no absolute rule of law that the dying declaration cannot
form the sole basis for conviction unless it is corroborated, the courts must be
cautious and must relay on the same if it inspires confidence in the mind of the Court.
If the dying declaration creates any suspicion in the mind of Court as to its
correctness and genuineness, it should not be acted upon without corroborative
evidence [See also: Atbir V. Government of NCT of Delhi, 2010 (9) SCC 1, Paniben V.
State of Gujarat, 1992 (2) SCC 474 and Panneerselvam V. State of Tamilnadu, 2008 (17)
SCC 190.]
Applying the settled legal position to the factual matrix of the case, the dying
declaration of the deceased (Ext.10) was recorded by the Special Executive Magistrate
(PW1) on 14.12.1991 after obtaining the fitness condition of the victim by the duty
Medical Officer who issued the fitness certificate after examining the patient. There
cannot be suspicion over the genuineness of the dying declaration as the deceased has
described the incident and declared the name of the accused to be the culprit in clear
and categorical terms. In that view of the matter, we have no hesitation to say that the
dying declaration of the deceased in the instant case can form the sole basis for
conviction of the accused – appellant. Madan @ Madhu Patekar V. The State of
Maharashtra 2018 (3) Supreme 546
Sec. 26 – Statement given to police by accused while in custody – Not admissible
We are of the considered opinion that both the courts below have erred in
relying that part of the statement which can be termed as confession which were
given to the police officer while they were in custody and it will be hit by Section 26 of
the Indian Evidence Act,1872 and only that part of the statement which led to the
discovery of various materials would be permissible. In the absence of any other
material evidence against the appellants-accused, they cannot be convicted solely on
the basis of evidence of last seen together with the deceased. Navaneethakrishnan V.
The State By Inspector of Police 2018 (4) Supreme 652
Family and Personal Laws:
Will—Genuineness—Two wills, one in favour of plaintiff, other in favour of
dependants, executed by testator—Relevant factors for determining genuineness
First will, a registered deed, executed in favour of minor daughter and minor
son from first wife of testator, but kept in possession of the son U (Defendant 1).
Subsequent alleged will in favour of defendant unregistered and having no mention of
earlier registered document and its revocation. Minor on attaining majority filed suit
for declaration of ownership of property on strength of earlier will but having no
access to it produced certified copy thereof and proved the same in terms of S. 68 of
Evidence Act. Held on facts, earlier will is genuine. Hence, plaintiff entitled to
declaration of her ownership over bequeathed property. H.V. Nirmala V. R. Sharmila,
(2018) 3 SCC 303
Guardians and Wards Act:
Custody of Child/Minor—Jurisdiction of Indian courts—Paramount consideration is
best interest of child—Re-emphasised—Ignoring this aspect in custody matters at
threshold by applying Or. 7 R. 11 CPC, while giving primacy to principles of intimate
contact/comity of courts/forum conveniens—Impropriety
The appellant filed a Guardianship Petition which was rejected by the Family
Court under Order VII Rule 11 of the Code of Civil Procedure on the ground that the
parties are nationals of the United States of America and the U.S. courts have intimate
contact with the matter. It was observed the marriage between the parties took place
in U.S.A. Out of the wedlock, one child was born in 2012 in U.S.A. and the second child
was born in India. The appellant came to India, just before the delivery of the said
child. The High Court has affirmed the said order.
In Nithya Anand Raghavan v. State (NCT of Delhi), (2017) 8
SCC 454 and it was observed :
“39. Court must remind ourselves of the settled legal
position that the concept of forum convenience has no place in
wardship jurisdiction. Further, the efficacy of the principle of
comity of courts as applicable to India in respect of child custody
matters has been succinctly delineated in several decisions of this
Court.
* * *
66. The invocation of first strike principle as a decisive
factor, in our opinion, would undermine and whittle down the
wholesome principle of the duty of the Court having jurisdiction to
consider the best interests and welfare of the child, which is of
paramount importance. If the Court is convinced in that regard, the
fact that there is already an order passed by a foreign Court in
existence may not be so significant as it must yield to the welfare
of the child. That is only one of the factors to be taken into
consideration. The interests and welfare of the child are of
paramount consideration. The principle of comity of courts as
observed in Dhanwanti Joshi case [1998(1) SCC 112], in relation to
non-convention countries is that the Court in the country to which
the child is removed will consider the question on merits bearing
the welfare of the child as of paramount importance and consider
the order of the foreign Court as only a factor to be taken into
consideration. While considering that aspect, the Court may reckon
the fact that the child was abducted from his or her country of
habitual residence but the Court's overriding consideration must be
the child's welfare.”
In view of above, principle of comity of courts or principle of
forum convenience alone cannot determine the threshold bar of
jurisdiction. Paramount consideration is the best interest of child. The
same cannot be subject-matter of final determination in proceedings under
Order VII Rule 11 of the C.P.C.
Accordingly, Court set aside the impugned order. The application
under Order VII Rule 11 is dismissed. (6) Since it is pointed out that the
proceedings on the same subject-matter are also pending before the High
Court, the trial court may wait for the decision of the High Court before
proceeding further.
(7) Court make it clear that Court has not expressed any opinion on the
merits of the case and the Family Court may now decide the matter
expeditiously and as far as possible within six months from today.
(8) The parties are directed to appear before the Family Court for further
proceedings on Saturday, the 24.2.2018. Jasmeet Kaur V. Navtej Singh,
(2018) 4 SCC 295
Hindu Marriage Act:
Ss. 13 and 13-B r/w Art. 142 of Constitution—Powers under Art. 142 to do complete
justice—Invocation of—Settlement of matrimonial dispute through Supreme Court
Mediation Centre—FIR lodged by wife quashed and marriage dissolved on consent in
terms of settlement
In the present case, the Hon’ble Supreme Court vide its order dated 9.11.2017
(Sneha Parikh v. Manit Kumar, Transfer Petition (C) No. 373 of 2017) was pleased to
refer the matter to the Supreme Court Mediation Centre. Comprehensive mediation
sessions were held with the parties separately and jointly in the presence of their
respective counsel today i.e. on 16.11.2017. Both the parties hereto have arrived at an
amicable mutual marriage by mutual consent and for quashing of Crime Registration
No. 386 of 2016 at PS Samta Nagar, Mumbai against the respondent and his other
family members.
Court has perused the settlement agreement. In the course of hearing, the
learned counsel for the parties submitted that this Court may grant divorce and quash
the first information report (FIR) lodged by the petitioner wife, forming the subject-
matter of Crimi Registration/FIR No. 386 of 2016 registered at Police Station Samta
Nagar, Mumbai, for the offences punishable under Sections 498-A, 406 and 506 Part II
read with Section 34 of the Penal Code, 1860 (IPC).
Court has also been apprised that the amount of Rs. 12,00,000 (Rupees twelve
lakhs only) has been paid the petitioner wife today.
In view of the aforesaid, Court thinks it appropriate to direct that the marriage
between the parties stands dissolved on consent. It is ordered accordingly.
As all other disputes have been put to rest, Court thinks it appropriate to
quash Crime Registration/FIR No. 386 of 2016 registered at Police Station Samta
Nagar, Mumbai, for the offences punishable under Sections 498-A, 406 and 506 Part II
read with Section 34 IPC. Court appreciate the efforts made by the learned Mediator
to convince the parties and make them arrive at the settlement.
The transfer petition is accordingly disposed of. Pending interlocutory
applications, if any, also stand disposed of. Sneha Kumari V. Manit Kumar, (2018) 4
SCC 501
Sec. 24/25 – Family court granting permanent alimony of 15,00,000 – High Court
affirming the same – No factual narration on the issue – Order cryptic and unreasoned
– Unsustainable in law.
In our view, mere perusal of the order of the Family Court and the High Court
quoted supra, would go to show that both the Courts failed to apply their judicial mind
to the factual and legal controversy insofar as award of permanent alimony to the
respondent(wife) is concerned. Both the Courts did 6 not even mention the factual
narration of the case set up by the parties on the question of award of permanent
alimony and without there being any discussion, appreciation, reasoning and
categorical findings on the material issues such as, financial earning capacity of
husband to pay the alimony and also the financial earning capacity of wife, a direction
to pay Rs.15,00,000/- by way of permanent alimony to the wife was given. In our
opinion, such direction is wholly unsustainable in law.
It is really unfortunate that neither the Family Court nor the High Court kept in
mind these legal principles and passed cryptic and unreasoned orders. Such orders
undoubtedly cause prejudice to the parties and in this case, it caused prejudice to the
appellant(husband) because the orders of the High Court and Family Court deprived
him to know the reasons for fixing the permanent alimony amount of Rs.15,00,000/-
payable to his wife. Jalendra Padhiary V. Pragati Chhotray 2018 (4) 356
Ss. 24 and 13—Interim maintenance u/S. 24—Effect of maintenance already granted
u/S. 125 CrPC—Held, maintenance granted by Family Court u/S. 24, 1955 Act would
supersede maintenance granted u/S. 125 CrPC
The appellant is the husband whereas the respondent is the wife.
The appellant (husband) has filed the divorce petition under Section 13 of
the Hindu Marriage Act, 1955 (hereinafter referred to as “the Act”)
against the respondent (wife) being Divorce Case No. 42/2010 before the
Principal Judge, Family Court, Begusarai. It is pending for its final
disposal.
The respondent (wife) filed an application under Section 24 of the
Act in the aforesaid Divorce petition and claimed from the appellant
(husband) pendente lite monthly maintenance for herself and her daughter.
The appellant contested it.
By order dated 15.07.2016, the Family Judge awarded Rs.8000/-
per month to the wife and Rs.4000/- per month to her minor daughter
towards the maintenance and Rs.2500/- per month towards the litigation
expenses.
It may be mentioned here that the respondent wife had also filed
one application under Section 125of the Criminal Procedure Code, 1973
(hereinafter referred to as “Cr.P.C”) seeking maintenance before the
Principal Judge, Family Court, Samastipur. By order dated 03.01.2011,
the Family Judge allowed the application and awarded Rs.4000/- per
month to the wife (petitioner therein) and Rs.2000/- per month to the
daughter towards the maintenance and Rs.5000/- towards the litigation
expenses.
The appellant husband felt aggrieved by the order dated 15.07.2016
by the Family Judge and filed civil miscellaneous application in the High
Court at Patna. By impugned order, the Single Judge upheld the order
dated 15.07.2016 of the Family Judge, Begusarai and dismissed the
application filed by the appellant herein, which has given rise to filing of
the present appeal by way of special leave before this Court by the
husband.
Having heard learned counsel for the parties and on perusal of the
record of the case, Court is inclined to dispose of the appeal finally as
under:
First, the Family Court shall decide the main Divorce Case No.
42/2010 preferably within 6 months on merits.
Second, consequent upon passing of the maintenance order dated
15.07.2016 under Section 24 of the Act by the Family Court, the order
passed by the Family Court, Samastipur under Section 125 of Cr.P.C.
stands superseded and now no longer holds the field. Indeed, this fact was
conceded by the learned counsel appearing for the respondent wife.
Parties are at liberty to adduce evidence on the issue of grant of
permanent maintenance in the main case. Parties are also granted liberty
to mediate and settle the issue amicably by appearing before the Family
Court and if the issue is not settled amicably, the Family Court would
decide it on merits, as directed above. Sanjay Kumar Sinha V. Asha
Kumari, (2018) SCC 333 : 2018 (5) Scale 410
Hindu Succession Act:
Sec. 6 (as amended w.e.f. 9.9.2005 by Amendment Act 29 of 2005)—
Daughter born before enactment of HS Act, 1956—Right of, in joint
Hindu family property governed by Mitakshara law—Right under
unamended and amended Sec. 6 of HS Act—Determination—Effect
of birth prior to enactment of HS Act—Explained in detail.
One G, propositus of a joint Hindu family, died in the year 2001
leaving behind his wife, two daughters and two sons R and V. After the
death of G, the son of R filed a civil suit for partition and separate
possession with respect to the suit schedule properties stating the same to
be the joint family properties. In that suit, though the plaintiff admitted
that the two sons and the widow of G were in joint possession of the said
properties as coparceners, he denied that the two daughters of G were
coparceners in the said joint family on the ground that they were born
prior to the enactment of the Hindu Succession Act, 1956 (hereinafter
referred to as “the HS Act”). It was also pleaded that the daughters were
married and at the time of their marriage they had received gold and
money and had, hence, relinquished their share in the joint family
properties. However, the daughters contested the suit by claiming that
they were also entitled to share in the joint family properties. The trial
court decreed the suit holding that the daughters were not entitled to any
share as they were born prior to the enactment of the HS Act and,
therefore, could not be considered as coparceners. The trial court also
rejected the alternate contention that the daughters had acquired share in
the said properties after the amendment in the HS Act vide Amendment
Act, 2005. The said view of the trial court was upheld by the High Court
confirming the decree dated 9.8.2017 passed in the suit. Hence, the
present appeals by the daughters.
On taking note of the provisions of Section 6 of the HS Act, 1956
as it stood prior to its amendment by the Amendment Act, 2005,
Explanation 1 to that section states that the interest of the deceased in
Mitakshara coparcenary property shall be deemed to the share in the
property that would have been allowed to him if the partition of the
property had taken place immediately before his death, irrespective
whether he was entitled to claim partition or not. This Explanation came
up for interpretation before the Supreme Court in Anar Devi, (2006) 8
SCC 656. The said case clearly negates the view taken by the High Court
in the impugned judgment.
Anar Devi v. Parmeshwari Devi, (2006) 8 SCC 656, relied on
That apart, Court is of the view that amendment to the aforesaid Section
vide Amendment Act, 2005 clinches the issue, beyond any pale of doubt,
in favour of the appellants. This amendment now confers upon the
daughter of the coparcener as well the status of coparcener in her own
right in the same manner as the son and gives same rights and liabilities in
the coparcener properties as she would have had if it had been son. These
changes have been brought in Section 6 of the HS Act on the touchstone
of equality. Thus seeking to remove the perceived disability and prejudice
to which a daughter was subjected. Section 6 of the HS Act, 1956, as
amended in 2005, stipulates that on and from the commencement of the
said amendment, the daughter of a coparcener shall by birth become a
coparcener in her own right in the same manner as the son. It is apparent
that the status conferred upon sons under the old section and the old
Hindu Law was to treat them as coparceners since birth. The amended
provision now statutorily recognizes the rights of coparceners of
daughters as well since birth. The section uses the words in the same
manner as the son. It should therefore apparent that both the sons and the
daughters of a coparcener have been conferred the right of becoming
coparceners by birth. It is the very factum of birth in a coparcenary that
creates the coparcenary, therefore the sons and daughters of a coparcener
become coparceners by virtue of birth. Devolution of coparcenary
property is the later stage of and a consequence of death of a coparcener.
The first stage of a coparcenary is obviously its creation, and is well
recognized. One of the incidents of coparcenary is the right of a
coparcener to seek a severance of status. Hence, the right of coparceners
emanate and flow from birth (now including daughters) as is evidence
from sub-sections (1)(a) and (b) of Section 6 of the HS Act.
It is clear that the right to partition has not been abrogated. The
right is inherent and can be availed of by any coparcener, now even a
daughter who is a coparcener. Danamma alias Suman Surpur V. Amar,
(2018) 3 SCC 343
Honour Killing:
Honour crime is genus and honour killing is spscies – Fulcrum of issue, violation of
Constitutional rights – Any kind of torture or torment or ill – treatment in the name of
honour tantamount to atrophy of choice of an individual relating to love and marriage
by any assembly – Illegal.
The instant Writ Petition has been preferred seeking directions to the
respondents- State Governments and the Central Government to take preventive
steps to combat honour crimes, to submit a National Plan of Action and State Plan of
Action to curb crimes of the said nature and further to direct the State Governments
to constitute special cells in each district which can be approached by the couples for
their safety and well being. That apart, prayers have been made to issue a writ of
mandamus to the State Governments to launch prosecutions in each case of honour
killing and take appropriate measures so that such honour crimes and embedded evil
in the mindset of certain members of the society are dealt with iron hands.
The observations were made and the directions were issued in cases where a
crime based on honour was required to be dealt with. But, the present case, in
contradistinction, centres around honour killing and its brutality and the substantive
measures to be taken to destroy the said menace. The violation of the constitutional
rights is the fulcrum of the issue.
The protection of rights is pivotal. Though there has been constant social
advancement, yet the problem of honour killing persists in the same way as history
had seen in 1750 BC under the Code of Hammurabi. The people involved in such
crimes become totally oblivious of the fact that they cannot tread an illegal path,
break the law and offer justification with some kind of moral philosophy of their own.
They forget that the law of the land requires that the same should be shown implicit
obedience and profound obeisance. The human rights of a daughter, brother, sister or
son are not mortgaged to the so-called or so-understood honour of the family or clan
or the collective. The act of honour killing puts the rule of law in a catastrophic crisis.
It is necessary to mention here that honour killing is not the singular type of
offence associated with the action taken and verdict pronounced by the Khap
Panchayats. It is a grave one but not the lone one. It is a part of honour 35 crime. It has
to be clearly understood that honour crime is the genus and honour killing is the
species, although a dangerous facet of it. However, it can be stated without any fear of
contradiction that any kind of torture or torment or ill-treatment in the name of
honour that tantamounts to atrophy of choice of an individual relating to love and
marriage by any assembly, whatsoever nomenclature it assumes, is illegal and cannot
be allowed a moment of existence. Shakti Vahini V. Union of India 2018 (3) Supreme
100
Khap Panchayat – No such assembly should take the law into their hands – They
cannot assume character of law implementing agency – Such acts being illegal and
impermissible cannot be recognized or accepted.
The 'Khap Panchayats' or such assembly should not take the law into their hands and further cannot assume the character of the law implementing agency, for that authority has not been conferred upon them under any law. Law has to be allowed to sustain by the law enforcement agencies. For example, when a crime under IPC is committed, an assembly of people cannot impose the punishment. They have no authority. They are entitled to lodge an FIR or inform the police. They may also facilitate so that the accused is dealt with in accordance with law.
But, by putting forth a stand that they are spreading awareness, they really can neither affect others' fundamental rights nor cover up their own illegal acts. It is simply not permissible. In fact, it has to be condemned as an act abhorrent to law and, therefore, it has to stop. Their activities are to be stopped in entirety. There is no other alternative. What is illegal cannot commend recognition or acceptance.
Having noted the viciousness of honour crimes and considering the
catastrophic effect of such kind of crimes on the society, it is desirable to issue
directives to be followed by the law enforcement agencies and also to the various
administrative authorities. We are disposed to think so as it is the obligation of the
State to have an atmosphere where the citizens are in a position to enjoy their
fundamental rights. Shakti Vahini V. Union of India 2018 (3) Supreme 100
Indian Penal Code:
Sec. 34 – Two accused committing crime having common intention – One accused
dying – Other accused actively participating in the crime till last with the other
accused – Effect of.
In our view, death of Kumar was of no significance so far as the appellant's
prosecution is concerned. The reason being that this was a case of common intention
of the two accused persons to eliminate Murugan and the appellant was one of the
accused persons, who was found actively participating in the crime till last along with
the other accused, who died.
In our view, the two Courts below, therefore, were right in holding the
appellant guilty of commission of the offences in question by properly appreciating the
ocular evidence of the prosecution witness notwithstanding the death of the co-
accused, which was of no relevance for deciding the involvement of the appellant in
commission of crime. Murugan V. State of Tamil Nadu 2018 (4) Supreme 545
Sec. 81—Protection to act done with knowledge that it is likely to cause harm—
Available when act done without criminal intent to cause harm, in good faith and for
preventing other harm
Section 81 protects acts which are done without a criminal intent to cause
harm, in good faith, to prevent or avoid other harm to person or property. The law
protects the action though it was done with the knowledge that it was likely to cause
harm if a three-fold requirement is fulfilled. It comprehends an absence of criminal
intent to cause harm, the presence of good faith and the purpose of preventing other
harm. Knowledge of the likelihood of harm is not culpable when a criminal intent to
cause harm is absent and there exists an element of good faith to prevent or avoid
other harm. Common Cause (A Registered Society) V. Union of India, (2018) 5 SCC 1
Ss. 107, 305, 306—To constitute abetment, there must be course of conduct or action
of intentionally aiding or facilitating another person to end life
A distinction arises between active and passive euthanasia from the
provisions of the Penal Code. Active euthanasia involves an intention to cause the
death of the patient. Mens rea requires a guilty mind; essentially an intent to cause
harm or injury. Passive euthanasia does not embody an intent to cause death. A
doctor may withhold life support to ensure that the life of a patient who is in the
terminal stage of an incurable illness or in a permanent vegetative state, is not
prolonged artificially. The decision to do so is not founded upon an intent to cause
death but to allow the life of the patient to continue till and cease at the end of its
natural term. Placing such a person on life support would have been an intervention in
the natural process of death. A decision not to prolong life by artificial means does not
carry an intention to cause death. Common Cause (A Registered Society) V. Union of
India, (2018) 5 SCC 1
Sec. 302 – Trial Court convicting appellant u/s 302 – Awarding 10 years jail term –
Unheard of – Illegal per se
Section 302 IPC, in clear terms, provides that "whoever commits murder shall
be punished with "death" or "imprisonment for life" and shall also be liable to "fine".
Any punishment less than the life imprisonment, as prescribed under Section
302 IPC, if awarded by any Court is per se illegal and without authority of law. Indeed,
there is no such discretion left with the Court in awarding the punishment except to
award the punishment which is prescribed under Section 302 IPC as mentioned above.
In the light of the foregoing discussion, we are of the considered opinion that
the High Court was justified in modifying the jail sentence awarded to the appellant by
the Sessions Judge and rightly enhanced the sentence by awarding punishment of "Life
imprisonment" under Section 302 IPC to the appellant (accused) in place of "10 years
jail sentence awarded by the Sessions Judge. Bharatkumar Rameshchandra Barot V.
State of Gujarat 2018 (4) Supreme 284
Sec. 302—Murder trial—Appreciation of evidence—Evidence of 10 year old daughter
of deceased P, who was eyewitness to the incident—Credibility of
Contention of Accused 4 (appellant-accused herein), wife of deceased M, that
courts below committed a grievous error by giving weight to evidence of PW 3 (10
years old daughter of deceased P, sister of M) while disbelieving evidence of DW 1
(Headmaster of school where PW 3 was studying), who deposed that girl child was
present in school at the time of occurrence and supported his claim with Ext. D-1, the
attendance register of school, wherein it was clearly shown that student was present
in school.
Held, argument of A-4, that courts below erred in disbelieving evidence of DW
1, cannot be accepted, for the reason, that it is manifest on record that all students
were marked as present in attendance register (Ext. D-1) of school in which PW 3 was
studying, for a continuous period of seven months, and there was not even a single
absentee. Thus, it is indicative of fact, that irrespective of fact whether students have
attended the school or not, attendance was marked to all students. In such
circumstances, neither evidence of DW 1 nor Ext. D-1 will come to rescue of accused
and on such count, evidence of PW 3 cannot be disbelieved. Ganapathi V. State of
Tamil Nadu, (2018) 5 SCC 549
Sec. 302 r/w Ss. 34, 364 & 379 – Evidence Act, 1872- S. 27 –Murder –Circumstantial
evidence- Last seen evidence- In absence of any other material evidence against
accused, they cannot be convicted solely on the basis of evidence of last seen together
with the deceased
The pivotal evidence in the given case is the testimony of PW-11
who is believed to have lastly seen the appellants-accused with the
deceased. Learned counsel appearing for the appellants-accused has
contended that all the accused were unknown to PW-11 but no
identification parade was conducted and the said witness has identified the
said accused directly in court after a lapse of about 50 days‟ and hence his
evidence should not be relied upon.
It is a settled proposition of law that the identification parade of the
accused before the court of law is not the only main and substantive piece
of evidence, but it is only a corroborative piece of evidence. PW-11 was able to identify all the three accused in the Court itself by
recapitulating his memory as those persons who came at the time when he was
washing his car along with John Bosco and further that he had last seen all of them
sitting in the Omni van on that day and his testimony to that effect remains intact even
during the cross examination in the light of the fact that the said witness has no
enmity whatsoever against the appellants herein and he is an independent witness.
Once the testimony of PW-11 is established and inspires full confidence, it is well
established that it is the accused who were last seen with the deceased specially in the
circumstances when there is nothing on record to show that they parted from the
accused and since then no activity of the deceased can be traced and their dead
bodies were recovered later on. It is a settled legal position that the law presumes that
it is the person, who was last seen with the deceased, would have killed the deceased
and the burden to rebut the same lies on the accused to prove that they had departed.
Undoubtedly, the last seen theory is an important event in the chain of circumstances
that would completely establish and/or could point to the guilt of the accused with
some certainty. However, this evidence alone can’t discharge the burden of
establishing the guilt of accused beyond reasonable doubt and requires corroboration.
In this view, the information given by an accused person to a police officer
leading to the discovery of a fact which may or may not prove incriminatory has been
made admissible under Section 27 of the Evidence Act, 1872.
The law is well settled that each and every incriminating circumstance must be
clearly established by reliable and clinching evidence and the circumstances so proved
must form a chain of events from which the only irresistible conclusion about the guilt
of the accused can be safely drawn and no other hypothesis against the guilt is
possible. In a case depending largely upon circumstantial evidence, there is always a
danger that conjecture or suspicion may take the place of legal proof. The court must
satisfy itself that various circumstances in the chain of events must be such as to rule
out a reasonable likelihood of the innocence of the accused.
When the important link goes, the chain of circumstances gets snapped and
the other circumstances cannot, in any manner, establish the guilt of the accused
beyond all reasonable doubt.
The Court in mindful of caution by the settled principles of law and the
decisions rendered by this Court that in a given case like this, where the prosecution
rests on the circumstantial evidence, the prosecution must place and prove all the
necessary circumstances, which would constitute a complete chain without a snap and
pointing to the hypothesis that except the accused, no one had committed the
offence, which in the present case, the prosecution has failed to prove.
In view of the foregoing discussion, court is of the considered opinion that
both the courts below have erred in relying that part of the statement which can be
termed as confession which were given to the police officer while they were in custody
and it will be hit by Section 26 of the Indian Evidence Act,1872 and only that part of
the statement which led to the discovery of various materials would be permissible.
Hence, in the absence of any other material evidence against the appellants-accused,
they cannot be convicted solely on the basis of evidence of last seen together with the
deceased. Navaneethakrishnan V. The State by Inspector of Police, 2018 (6) SCALE 16
Ss. 302/149—Formation of unlawful assembly armed with deadly weapons, with
common object to commit murder—Appreciation of evidence
Held, it cannot be held as a matter of law or invariably a rule, that whenever
accused sustained an injury in the same occurrence, prosecution is obliged to explain
the injury and on failure of prosecution to do so, the prosecution case should be
disbelieved. Before holding that non-explanation of injuries on persons of accused
persons by prosecution witnesses may affect prosecution case, court has to be
satisfied of existence of two conditions: (i) that injury on person of accused was of a
serious nature; and (ii) that such injuries must have been caused at the time of
occurrence in question. Instant case of murder, herein, by going through judgment of
courts below, it is seen that injuries sustained by appellant-accused were simple in
nature and while so it was not incumbent upon prosecution to explain such injuries. It
is also relevant to note the answers elicited from doctors, that such injuries found on
accused could be self-inflicted. Dashrath Alias Jolo V. State of Chhattisgarh, (2018) SCC
428
Sec. 302 or Sec. 304—Parameters to be taken into consideration while deciding
question as to whether a case falls u/S. 302 or S. 304—Summarised
The parameters, inter alia, which are to be taken into consideration while
deciding the question as to whether a case falls u/S. 302 IPC or Sec. 304 IOC, are as
follows:
(a) The circumstances in which the incident took place;
(b) The nature of weapon used;
(c) Whether the weapon was carried or was taken from the spot;
(d) Whether the assault was aimed on vital part of body;
(e) The amount of the force used;
(f) Whether the deceased participated in the sudden fight;
(g) Whether there was any previous enmity;
(h) Whether there was any sudden provocation;
(i) Whether the attack was in the heat of passion; and
(j) Whether the person inflicting the injury took any undue advantage or
acted in the cruel or unusual manner.
Lavghanbhai Devjibhai Vasava V. State of Gujarat, (2018) 4 SCC 329
Ss. 376, 342, 493, 506 & 354 (c)- Cr.PC- Section 439- Bail – Grant of –Bail once granted
should not be cancelled unless a cogent case, based on a supervening event has been
made out
The accused had the benefit of an order granting him anticipatory
bail. The grant of anticipatory bail was cancelled principally on the
ground that he had not disclosed the pendency of a prosecution against
him in the 2G Spectrum case. The Court has been informed during the
course of the hearing that the said prosecution has ended in an acquittal.
Regular bail was granted by the High Court on 17 November 2017 in the
present case.
The second FIR which was lodged on 22 November 2017 is not, in
Court view, a supervening circumstance of such a nature as would warrant
the cancellation of the bail which was granted by the High Court. The
learned counsel appearing on behalf of the accused has submitted that the
lodging of the second FIR, four days after the order of bail is merely an
attempt to bolster a case based on a supervening event and that it suffers
from vagueness and a complete absence of details.
Court is not inclined to make any further observations and leave the
matter there. Above all, the Court must bear in mind that it is a settled
principle of law that bail once granted should not be cancelled unless a
cogent case, based on a supervening event has been made out. Court find
that to be absent in the present case. Ms. X v. The State of Telangana,
2018(7) Scale 494
Sec. 396 – Dacoity – Murder committed during dacoity – Offence serious particularly
when dacoits are armed – Instantly, appellants not armed – Punishment of life
imprisonment modified to imprisonment for ten years.
Placing reliance upon Dinesh alias Buddha v. State of Rajasthan (2006) 3 SCC
771, the High Court took the view that commission of murder in the course of dacoity
is to be viewed with seriousness. We are also of the view that the offence under
Section 396 IPC is to be viewed with seriousness, especially, when the dacoits are
armed. But in the case in hand, the accused were not armed. Accused Babu @ Nawab
Sahib is alleged to have sat on deceased Muthukrishnan and pressed his nose and
mouth and is alleged to have tightened his neck with the rope. The occurrence was of
the year 2002. Considering the long lapse of time and the facts and circumstances of
the case, the sentence of imprisonment for life is modified as ten years as directed by
the trial court. Shajahan V. State represented by Inspector of Police 2018 (2) Supreme
449
Sec. 498 A- Cruelty- Conviction of parents-in-Law-Sustainability
The evidence in the present case shows that after the letter was sent
by Malathi to the office of Chief Minister, inquiries were conducted by
the police. The evidence further indicates that at that juncture, no
complaint was made by Malathi or her parents regarding any dowry
related harassment. Further, she was brought to Cuddalore on 08.12.2003
where the couple used to live separately and the incident in question
occurred on the intervening night between 8th and 9th December, 2003. In
the circumstances, the evidence on record is completely inadequate to
bring home the charge against the appellants. Court has gone through the
entirety of the matter and in our considered view, both the appellants are
entitled to acquittal.
Court, therefore, allow this appeal and set aside the judgment and
order of conviction and sentence as recorded against the appellants. The
appellants are acquitted of the charge of Section 498A IPC leveled against
them. Manoharan V. State Rep. By Inspector of Police, 2018 (7) Scale
310
Industrial Disputes Act:
Sec. 11-A and 2 (00) – Powers and procedures – Respondent terminated by way of
punishment – Such termination not retrenchment.
We are constrained to observe that first, the Labour Court committed an error
in not framing a "preliminary issue" for deciding the legality of domestic enquiry and
second, having found fault in the domestic inquiry committed another error when it
did not allow the appellant to lead independent evidence to prove the
misconduct/charge on merits and straightaway proceeded to hold that it was a case of
illegal retrenchment and hence the respondents' termination is bad in law.
By no stretch of imagination, in our view, the Labour Court could treat the
respondent's termination as "retrenchment" much less an "illegal retrenchment". The
Labour Court failed to notice the definition of retrenchment in Section 2(oo) of the ID
Act which, in clear terms, provides that retrenchment does not include termination of
the service if it is imposed by way of punishment. Kurukshetra University V. Prithvi
Singh 2018 (3) Supreme 321
Interpretation of Statutes:
Constitutional Interpretation – Basic rules of interpretation—Harmonious
construction—Federal supremacy vis-à-vis harmonious construction—Manner of
interpretation
It is duty of court to harmonise entries, if possible, by giving effect to both and
not rendering any one of them otiose. Principle of federal supremacy cannot be
restored to unless there is an “irreconcilable” conflict between entries in Union and
State Lists. Jayant Verma V. Union of Inida, (2018) 4 SCC 743
Particular Statues or Provisions—Penal statutes or provisions—Interpretation in
background of constitutional principles—Where penal statute bears significant
relationship to fundamental constitutional principles of liberty, dignity and autonomy
on which question in issue is based, Court, while analyzing penal provisions, should
give effect to constitutional principles
Undoubtedly, constitutional positions are not controlled by statutory
provisions, because the Constitution rises above and controls legislative mandates.
But, in the present reference where no statutory provision is called into question, it is
necessary for the court to analyse the relationship between what the statute penalizes
and what the Constitution protects. The task of interpretation is to allow for their co-
existence while interpreting the statute to give effect to constitutional principle. This is
particularly so in an area such as the present where criminal law may bear a significant
relationship to the fundamental constitutional principles of liberty, dignity and
autonomy. Common Cause (A Registered Society) V. Union of India, (2018) 5 SCC 1
Provision should first be construed literally, then purposively and pragmatically
keeping the object of the provision in mind.
A provision such as Section 26 has to be construed literally first, and then
purposively and pragmatically, so as to keep the object of the provision also in mind.
Board of Control for Cricket in India V. Kochi Cricket Pvt. Ltd. 2018(2) Supreme 721
Juvenile Justice (Care and Protection of Children) Act:
Ss. 3, 4, 7, 106, 107 and Ch. IV—Effective implementation of JJ Act—Role of Police and
statutory officers like CWPO and SJPU under S. 107 JJ Act
Police as first responder should realize importance of issues pertaining to
offences allegedly committed by children or against children. There is therefore a need
to set up meaningful Special Juvenile Police Units and appoint Child Welfare Police
Officers in terms of the JJ Act at earliest and not only on paper. Duties and
responsibilities of such units and officers must be clearly identified. Wherever
necessary, guidance from available expertise, either National Police Academy or
Bureau of Police Research and Development or NGOs must be taken for benefit of
children. National Police Academy and State Police Academies must consider including
child rights as a part of their curriculum on a regular basis and not as an isolated or
sporadic event, Constitution of India, Art. 21. Sampurna Behura V. Union of India,
(2018) 4 SCC 433
Land Acquisition Act:
Sec. 4 – Compulsory acquisition can be made only for a public purpose
Public purpose is not capable of precise definition. Each case has to be
considered in the light of the purpose for which acquisition is sought for. It is to serve
the general interest of the community as opposed to the particular interest of the
individual. Public purpose broadly speaking would include the purpose in which the
general interest of the society as opposed to the particular interest of the individual is
directly and vitally concerned. Generally the executive would be the best judge to
determine whether or not the impugned purpose is a public purpose. Yet it is not
beyond the purview of judicial scrutiny. The interest of a section of the society may be
public purpose when it is benefited by the acquisition. The acquisition in question
must indicate that it was towards the welfare of the people and not to benefit a
private individual or group of individuals joined collectively. Therefore, acquisition for
anything which is not for a public purpose cannot be done compulsorily. Manimegalai
V. The Special Tahsildar (Land Acquisition Officer) Adi Dravidar Welfare 2018(4)
Supreme 612
Sec. 4 r/w Sec. 17(1) & (4) – Acquisition for freight complex – Could not be delayed –
Sec. 17 rightly invoked.
Coming to the invocation of the urgency provision, in our opinion, when the
public purpose of freight complex at Narela under Planned Development of Delhi was
involved, obviously, there was urgency and the project was such that it could not have
brooked any delay. Thus, invocation of section 17 was proper. Merely by the fact that
declaration under section 6 was issued in December, it could not be said that
invocation of the urgency provision under section 7(1) and 17(4) was improper. The
satisfaction of Lt. Governor as mentioned in the notification in the facts of the case
was not appropriate considering the nature of the requirement. We are satisfied that
notification under section 4 read with section 17(1) and 17(4) did not suffer with
illegality. Delhi Developm ent Authority V. Munni Lal 2018 (4) 93
Sec. 4 & 23- Compensation claims- Assessment of
On a plain reading of Section 23 of the LA Act, it is evident that
the compensation has to be calculated according to the value of the land to
the owner and the question to be considered is whether the person from
whom the land was taken was to lose by having it taken from him. The
probable use to which the land might be put was necessarily an element to
be taken into consideration for calculating the compensation of acquired
land. The land owners get compensation on the basis of the value of the
land, in its actual condition at the time of the publication of the
Notification under Section 4 of the LA Act.
In the instant case, the appellants contented and invited our
attention to the fact that the valuation of the acquired land should be
assessed on urban land criteria since land had all basic amenities like
water, sewer, electricity and telephone lines were already present on the
date of Notification under Section 4 of the LA Act. However for being an
urban area, there must be some other facilities like commercial activities,
population growth, education activities, paying capacity of people, healthy
public transport, infrastructure etc. It is also a well established rule that in
the cases of calculation of compensation, there cannot be a straight jacket
formula, hence, each case has to be dealt in the light of circumstances of
each case. Common sense is the best and most reliable guide.
It is a well settled law that when there are several exemplars with
reference to similar land, usually the highest of the exemplars which is a
bonafide transaction, will be considered. Mohammad Yusuf V. State of
Haryana, 2018(5) Scale 698
Ss. 23, 11 and 18—Fair market rate of acquired land prevalent on date of acquisition—
Determination of—Governing factors as to
There are several factors which govern determination of fair market rate of
acquired land. Said market rate therefore cannot be decided in isolation on basis of
only one factor. These factors are required to be provided with sufficient evidence. It
must appear that courts have made sincere endeavour to determine fair market rate
of acquired land taking into account all relevant aspects of the case. In this regard,
duty of landowners and State is to adduce proper and sufficient evidence to enable
courts to arrive at a reasonable and fair market rate of acquired land prevalent on date
of acquisition. Surender Singh V. State of Haryana, (2018) 3 SCC 278
Limitation Act:
Sec. 5 – Condonation of Delay – Consideration of
High Court ought to take a liberal view in matters of condonation of delay.
It is not in dispute that the appellant is an old man and in his late sixties. It is
also not in dispute that he did suffer heart disease during the relevant period and later
he was down with dengue fever. It is also not in dispute that he was hospitalized to get
medical treatment for these two ailments for a long time during that period. It is also
not in dispute that he was mentally disturbed due to disputes going on in his family
and was not able to attend to his day-to-day duties due to his old age and prolonged
ailments.
In the light of the aforementioned undisputed facts, in our opinion, the High
Court should have taken liberal view in the matter and held the cause shown by the
appellant as "sufficient cause" within the meaning of Section 5 of the Limitation Act
and accordingly should have condoned the delay in filing the appeal. Ummer V.
Pottengal Subida 2018(2) Supreme 490
Motor Vehicles Act:
Permanent total disability—Compensation—Human rights approach
Measure of compensation must reflect a genuine attempt of law to restore
dignity of being. Yardsticks of compensation should not be so abysmal as to lead one
to question whether our law values human life. It must provide a realistic recompense
for pain of loss and trauma of rights, they constitute entitlements under law. Our
conversations about law must shift from a paternalistic subordination of individual to
an assertion of enforceable rights as intrinsic to human dignity. Constitution of India,
Art. 21. Jagdish V. Mohan, (2018) 4 SCC 571
Standard of evidence in motor accident claim cases – Different from criminal trial
It is well settled that the nature of proof required in cases concerning accident
claims is qualitatively different from the one in criminal cases, which must be beyond
any reasonable doubts. Archit Saini V. Oriental Insurance Company Ltd 2018(3)
Supreme 455
Motor accident claims – Court cannot adopt a hyper-technical approach – Has to
discharge the role of parens patriae
It is well settled that in motor accident claim cases, the Court cannot adopt a
hyper- technical approach but has to discharge the role of parens patriae. Mohar Sai V.
Gayatri Devi 2018 (4) Supreme 503
Quantum—Fatal accident—Principles of assessment—Future prospects—Deceased
aged 21, contract worker in a company—High Court did not consider future prospects
while computing compensation—Validity of
On 3.3.2007, the deceased (Palani), who was only around 21 years of age at
the time, was riding a motor cycle bearing registration No. TN 22-AP 5092 along with
his friend, one Haridass as a pillion rider, from Tambaram to Chengalpattu on GST
Road, Maraimalai Nagar, opposite Vikram Hotel, whey they collided with a bus bearing
registration No. TN 21-N 0943 belonging to the respondent transport Corporation,
which was driven in a rash and negligent manner. Deceased was unmarried and
working as a contract worker in Hyundai Motor Company, Sriperumbudur. Applying
the dictum of the Constitution Bench referred to above, the appellants are justified in
insisting for grant of future prospects at the rate of 40 per cent of the established
income. The High Court has held that the earnings of the deceased at the relevant
time can be taken as Rs. 4,000 per month. The High Court did not provide 40 per cent
towards future prospects on the established income of the deceased. Thus, the
monthly loss of dependency, in the facts of the present case would be Rs. 4,000 + Rs.
1,600 = Rs. 5,600. Munusamy V. Managing Director, Tamil Nadu State Trans. Corpn.
Ltd., 2018 ACJ 740
Quantum — Injury — Principles of assessment—Permanent disablement—
Compensation can be granted both on account of permanent disability and loss of
future earnings as one head relates to impairment of person’s capacity and the other
to sphere of pain and suffering on account of loss of enjoyment of life
At the quantification of compensation, Court must be guided by the well
settled principle that compensation can be granted both on account of permanent
disability as well as loss of future earnings, because one head relates to the
impairment of the person’s capacity and the other to the sphere of pain and suffering
on account of loss of enjoyment of life by the person himself. ICICI Lombard General
Insurance Co. Ltd. V. Ajay Kumar Mohanty, 2018 ACJ 1020
Sec. 140 – Owner of a vehicle involved in an accident can be fastened liability to pay
compensation even if his vehicle was not driven rashly and negligently.
It is a well settled position that fastening liability under Sec. 140 of the
Act on the owner of the vehicle is regardless of the fact that the subject vehicle was
not driven rashly and negligently. Nishan Singh V. Oriental Insurance Company Ltd.
through Regional Manager 2018 (4) Supreme 560
S. 147 & 166- Accident claim- Liability of Insurance Company
There is no dispute about the fact that at the time of occurrence the tractor
which involved in the accident was being driven by the deriver- owner is a rash and
negligent manner. The evidence of PW 3, an independent eyewitness to the incident,
in all probabilities, makes it clear that the deceased had died because of the accident
caused by the tractor that was being driven in a rash and negligent manner while the
victim was gong to his home as a pedestrian on the footpath. The FIR also discloses the
very fact. At the same time, court find no material on record except the deposition of
RW-1, the Divisional manager of the Insurance Company, to establish that the victim
was a passenger of the tractor. A mere statement that the victim was unlawfully
travelling of the tractor, without any probable evidence cannot be taken into
consideration, when the evidence to the contrary is available, in the form of
deposition of an independent eyewitness. Notably enough, the deriver-owner-insured
of the tractor was not examined as witness. It is also manifest that he did not prefer
appeal against the verdict of the Tribunal which in other words supports the case of
appellants- claimants. Considering the circumstances stated above, in our opinion, the
conclusion reached by the Tribunal which in other words supports the case of
appellants- claimants. Considering the circumstances stated above, in our opinion, the
conclusion reached by merely making sweeping observation in a casual manner
without there being any reliable evidence. Court, therefore afford our concurrence to
the judgment arrived at by the Tribunal.
Resultantly, as held by the Tribunal, the respondents are jointly and severally
liable to pay the total amount of compensation i. Rs. 431000/- to the appellants herein
along with interest @6% p.a. from the date of filing of claim petition till the date of
realization. Smt. Suvarnamma V. United India Insurance Company Ltd. 2018 (5) Scale
516
Ss. 149(2), 165, 166 and 168—Insurer when may be absolved of its
liability u/S. 149(2) re fake/invalid/expired, etc. licence—Principles
laid down in Swaran Singh, (2004) 3 SCC 297, reiterated.
In the present appeal filed by the owner-cum-driver of the
offending motor cycle, the submission is that in view of the decision of a
Bench of three learned Judges of this Court in National Insurance Co. Ltd.
vs. Swaran Singh, (2004) 3 SCC 297, the insurer ought not to have been
absolved. Hence the direction to the insurer to pay and recover the
compensation from the appellant should, it has been urged, be modified to
fasten a joint and several liability on the insurer.
The following conclusion has been recorded in summation in the
judgment::
“(iii) The breach of policy condition e.g. disqualification of the driver or
invalid driving licence of the driver, as contained in sub-section (2)(a)(ii)
of Section 149, has to be proved to have been committed by the insured for
avoiding liability by the insurer. Mere absence, fake or invalid driving licence
or disqualification of the driver for driving at the relevant time, are not in
themselves defences available to the insurer against either the insured or the
third parties. To avoid its liability towards the insured, the insurer has to prove
that the insured was guilty of negligence and failed to exercise reasonable care
in the matter of fulfilling the condition of the policy regarding use of vehicles
by a duly licensed driver or one who was not disqualified to drive at the
relevant time.
(iv) Insurance companies, however, with a view to avoid their liability
must not only establish the available defence(s) raised in the said proceedings
but must also establish “breach” on the part of the owner of the vehicle; the
burden of proof wherefor would be on them.
(v) The court cannot lay down any criteria as to how the said burden
would be discharged, inasmuch as the same would depend upon the facts and
circumstances of each case.
(vi) Even where the insurer is able to prove breach on the part of the
insured concerning the policy condition regarding holding of a valid licence by
the driver or his qualification to drive during the relevant period, the insurer
would not be allowed to avoid its liability towards the insured unless the said
breach or breaches on the condition of driving licence is/are so fundamental
as are found to have contributed to the cause of the accident. The Tribunals in
interpreting the policy conditions would apply “the rule of main purpose” and
the concept of “fundamental breach” to allow defences available to the
insurer under Section 149(2) of the Act.
(vii) The question, as to whether the owner has taken reasonable care
to find out as to whether the driving licence produced by the driver (a fake one
or otherwise), does not fulfil the requirements of law or not will have to be
determined in each case”.
In the present case it is necessary to note, as observed by the
Tribunal, that the owner did not depose in evidence and stayed away from
the witness box. He produced a licence which was found to be fake.
Another licence which he sought to produce had already expired before
the accident and was not renewed within the prescribed period. It was
renewed well after two years had expired. The appellant as owner had
evidently failed to take reasonable care (proposition (vii) of Swaran
Singh) since he could not have been unmindful of facts which were within
his knowledge.
In the circumstances, the direction by the Tribunal, confirmed by
the High Court, to pay and recover cannot be faulted. Singh Ram V.
Nirmala, (2018) 3 SCC 800
Sec. 166 – Appellant receiving multiple fractures and losing all sensation in both legs –
Held, disability is complete – Judging it as 79% not proper.
On perusing the record it is evident that the injuries sustained by the appellant
are indeed of a serious nature. As a result of the multiple fractures sustained by him,
the appellant has lost complete sensation below the abdomen. Evidently he cannot
work anymore as load man. In these circumstances, the assessment of disability at 70
per cent is incorrect. On a realistic view of the matter, the nature of the disability must
be regarded as being complete. In the circumstances, we find no reason or justification
for the deduction of an amount of Rs 2,91,600 by the Tribunal (Rs 9,72,000 minus Rs
6,80,400). The amount so deducted must be restored and is rounded off to Rs
3,00,000. Moreover we are of the view that the appellant is entitled to interest at the
rate of 9 per cent per annum from the date of the claim petition. S. Thangaraj V.
National Insurance Co. Ltd. Rep. by the Branch Manager 2018(2) Supreme 442
Sec. 166 – Compensation – In case of permanent disability – Should
be adequate not only for the physical injury and treatment, but also
for loss of earning and inability to lead a normal life and enjoy
amenities
Having regard to all the facts and circumstances, we find merit in
the contention that the claim for compensation on the basis that the
disability was permanent was clearly not established. There was no basis
to award an amount of Rs. 20,75,700/-. The Tribunal has awarded an
amount of Rs. 2,09,622/- towards medical expenses. We accept the figure
of an annual loss of income of Rs. 79,877/-. The disability being of a
temporary nature, we award compensation of Rs. 5 lakhs towards loss of
income. We allow compensation of Rs. 2 lakhs towards trauma, pain and
suffering. In addition, the claimant is entitled to medical expenses of Rs.
2,09,622. We are of the view that the ends of justice would be met by
directing a payment of Rs. 9,10,000/- .
The claimant shall be entitled to interest at the rate of 9 per cent per annum
from the date of the filing of the petition. The insurer shall deposit the compensation
along with interest before the Tribunal within twelve weeks which shall be disbursed
to the claimant on proper identification. Icici Lambord General Insurance Co. Ltd. V.
Ajay Kumar Mohanty 2018 (2) Supreme 413
Sec. 166 – Contributory negligence – Would arise only when both parties are involved
in the accident due to rash and negligent driving.
The question of contributory negligence would arise when both parties are
involved in the accident due to rash and negligent driving. In a case such as the
present one, when the Maruti car was following the truck and no fault can be
attributed to the truck driver, the blame must rest on the driver of the maruti car for
having driven him vehicle rashly and negligently. The High Court has justly taken note
of the fact that the driver and owner of the maruti car, as well as insurer of that
vehicle, had not b een impleaded as parties to the claim petition. The Tribunal has also
taken note of the fact that in all probability, the driver and owner of the maruti car
were not made party being close relatives of the appellants. In such a situation, the
issue of contributory negligence cannot be taken forward. Nishan Singh V. Oriental
Insurance Company Ltd. through Regional Manager 2018 (4) Supreme 560
Sec. 166 – Future prospects – Compensation must include some amount towards loss
of future prospects
On 03.03.2007, the deceased (Palani), who was only around 21 years of age at
the time, was riding a motorcycle bearing Registration No. TN-22 AP 5092 along with
his friend, one Haridass as a pillion rider, from Tambaran to Chengalpattu on GST
Road, Maramimalai Nagar, opposite Vikram Hotel, when they collided with a bus
bearing registration No. TN-21 N 0943 belonging to the respondent Transport
Corporation, which was driven in a rash and negligent manner. The deceased was
unmarried and working as a contract worker in Hyundai Car Company, Sriperumbudur.
Applying the dictum of the Constitution Bench referred to above, the appellants are
justified in insisting for grant of future prospects at the rate of 40% of the established
income. The High Court has held that the earning of the deceased at the relevant time
can be taken as Rs. 4,000/- per month. The High Court did not provide 40% towards
future prospects on the established income of the deceased. Thus, the monthly loss of
dependency, in the facts of the present case would be Rs. 4,000+1,600 = Rs. 5,600/-.
As a result, the Appeal stands allowed. The compensation awarded by the Hih
Court is enhanced from Rs. 5,01,500/- to Rs. 6,74,300/- [Rupees six lac seventy four
thousand three hundred only].Munusamy V. Managing Director, Tamil Nadu State
Transport Corporation (Villupuram) Ltd. 2018(3) Supreme 449
Sec. 166 – Future prospects – Cannot be confined to those having a permanent job –
Would extend to self-employed individuals
The appellant was injured in a motor accident. The Tribunal awarded
compensation of Rs. 12,81,228/- for the injuries suffered b y him. The High Court
enhanced the award of compensation by an amount of Rs. 2, 19, 000/-. Interest of 7.5
per cent per annum has been awarded from the date of the filing of the claim. The
appellant seeks an enhancement of compensation.
In the judgment of the Constitution Bench in Pranay Sethi
(supra),this Court has held that the benefit of future prospects should not
be confined only to those who have a permanent job and would extend to
self-employed individuals. In the case of a self-employed person, an
addition of 40 per cent of the established income should be made where
the age of the victim at the time of the accident was below 40 years.
Hence, in the present case, the appellant would be entitled to an
enhancement of Rs. 2400/-towards loss of future prospects.
In making the computation in the present case, the court must be mindful of
the fact that the appellant has suffered a serious disability in which he has suffered a
loss of the use of both his hands. For a person engaged in manual activities, it requires
no stretch of imagination to understand that a loss of hands is a complete deprivation
of the ability to earn. Nothing - at least in the facts of this case - can restore lost hands.
But the measure of compensation must reflect a genuine attempt of the law to restore
the dignity of the being.
Our yardsticks of compensation should not be so abysmal as to lead one to
question whether our law values human life. If it does, as it must, it must provide a
realistic recompense for the pain of loss and the trauma of suffering. Awards of
compensation are not law's doles. In a discourse of rights, they constitute entitlements
under law. Our conversations about law must shift from a paternalistic subordination
of the individual to an assertion of enforceable rights as intrinsic to human dignity.
Jagdish V. Mohan 2018 (2) Supreme 388
Sec. 166 – Higher Court rightly computed the total income of the deceased – However
compensation towards loss of future prospects needs to be added
The High Court has computed the total income of the deceased at Rs 91,800
(Rs 55,000 being the income from agriculture and Rs 36,800 being the income from
salary). In view of the decision of the Constitution Bench in Pranay Sethi (supra), an
addition of 25% is warranted, on account of future prospects having regard to the age
of the deceased. The total income, after accounting for future prospects at 25% would
work out to Rs 1,14,000 per annum. An amount of one fourth would have to be
reduced on account of personal expenses. The net income would work out to Rs
85,500. Applying a multiplier of 14 the total compensation would work out to Rs
11,97,000. Adding a further amount of Rs 70,000 under conventional heads as
stipulated in the judgment 1 (2017) 13 SCALE 12 4 in Pranay Sethi (supra), the total
compensation payable would work out to Rs 12,67,000.
We find no reason or justification for the High Court to reduce the award of
interest to 6% p.a.. The rate of interest of 9% p.a. fixed by the Tribunal is restored.
Bhartiben Nayabha Ker V. Sidabha Pethabha Manke 2018 (3) Supreme 522
Ss. 166 and 168—Compensation—Total permanent disability—
Functional disability—Need to assess
On the perusing the record it is evident that the injuries sustained
by the appellant are indeed of a serious nature. As a result of the multiple
fractures sustained by him, the appellant has lost complete sensation
below the abdomen. Evidently he cannot work anymore as load man. In
these circumstances, the assessment of disability at 70% is incorrect. On a
realistic view of the mater, the nature of the disability must be regarded as
being complete. In the circumstances, Court finds no reason or
justification for the deduction of an amount of Rs 2,91,600 by the
Tribunal (Rs 9,72,000 minus Rs 6,80,400). The amount so deducted must
be restored and is rounded off to Rs 3,00,000. Moreover, Court is of the
view that the appellant is entitled to interest @ 9% p.a. from the date of
the claim petition. S. Thangaraj V. National Insurance Company Ltd.,
(2018) 3 SCC 605
Narcotic Drugs and Psychotropic Substances Act:
Ss. 8(c), 20(b)(ii)(c), 28/23 and 67—Search and seizure—Statement of official witness,
found impaired due to infirmities, not safe to rely upon and pass conviction order—
Statements of independent panch witnesses, depicting a different picture than one
portrayed by official witness, as to recovery and seizure—Recovery of narcotic
substance, not proved beyond reasonable doubt—Reversal of conviction by High
Court, confirmed
In this case, Officers of Customs Air Intelligence Unit, at airport, noticed that a
passenger of European origin was found to be suspiciously loitering near airline
counters of Swiss Air. R-1 accused was intercepted by Intelligence Officer. On opening
his suitcase, his personal belongings were kept aside, a false bottom was detected,
which when removed, three rectangular packets wrapped in cellophane tape were
discovered, containing brown-coloured substance, which tested positive for hashish, a
contraband substance. Net weight of recovered substance was found to be measuring
12.03 kg. Trial court convicted R-1 u/Ss. 8(c) & 20(b)(ii)(C) and S. 28 r/w S. 23, NDPS
Act. However, High Court reversed his conviction.
Held, evidence of PWs 8 and 9, panch witnesses, contradicted statement of
Intelligence Officer (PW 1). Except statement made u/S. 67, NDPS Act, by R-1, there is
no other material to substantiate the case against said respondent. Both PWs 8 and 9
have categorically stated, tht they were called by Intelligence Officer (PW 1) and by
the time they reached, the bag was already opened. Further, it was admitted by them,
that panchnama was not read over to them. They were asked to sign on number of
papers and they were not aware of the contents. Moreover, PW 1 did not state that
bag containing narcotic substance was opened in presence of panchas. Cross-
examination of PW 9 clearly reveals, that he does not agree to contents of panchnama
with respect to fact that search and inspection of baggage took place in his presence.
Moreover, aforesaid conclusion is substantiated by statement of PW 8 made in
examination-in-chief. Entire case of prosecution hinges n alleged recovery or narcotic
substance from R-1, but, this very fact is not proved beyond reasonable doubt, as
independent panch witnesses PWs 8 and 9 have portrayed a different story as to
recovery and seizure, than the one portrayed by official witness PW 1. After analysis of
above circumstances and evidence, prudence discates that statement of official
witness PW 1 cannot be the sole basis for convicting R-1. When statement of official
witness is impaired due to infirmities, it is not safe to place reliance upon the same
and pass conviction order against accused. Therefore, High Court rightly acquitted R-1
taking into consideration aforesaid aspects. In view of above and having regard to fact
that incident is of year 2004, there is no reason to interfere with impugned order
passed by High Court. Union of India V. Leen Martin, (2018) 4 SCC 490
Sec. 50 – Provisions mandatory – Non-compliance of Sec. 50 vitiates the conviction.
it is an admitted fact emerging from the record of the case that the appellant
was not produced before any Magistrate or Gazetted Officer; Second, it is also an
admitted fact that due to the aforementioned first reason, the search and recovery of
the contraband “Charas” was not made from the appellant in the presence of any
Magistrate or Gazetted Officer; Third, it is also an admitted fact that none of the police
officials of the raiding party, who recovered the contraband “Charas” from him, was
the Gazetted Officer and nor they could be and, therefore, they were not empowered
to make search and recovery from the appellant of the contraband “Charas” as
provided under Section 50 of the NDPS Act except in the presence of either a
Magistrate or a Gazetted Officer; Fourth, in order to make the search and recovery of
the contraband articles from the body of the suspect, the search and recovery has to
be in conformity with the requirements of Section 50 of the NDPS Act. It is, therefore,
mandatory for the prosecution to prove that the search and recovery was made from
the appellant in the presence of a Magistrate or a Gazetted Officer.
For the aforementioned reasons, we are of the considered opinion that the
prosecution was not able to prove that the search and recovery of the contraband
(Charas) made from the appellant was in accordance with the procedure prescribed
under Section 50 of the NDPS Act. Since the non-compliance of the mandatory
procedure prescribed under Section 50 of the NDPS Act is fatal to the prosecution case
and, in this case, we have found that the prosecution has failed to prove the
compliance as required in law, the appellant is entitled to claim its benefit to seek his
acquittal. Arif Khan @ Agha Khan V. The State Of Uttarakhand 2018 (4) Supreme 4923
Negotiable Instruments Act:
Sec. 138—Sentence and compensation—Waiver of imprisonment in lieu of payment of
additional compensation—Permissibility of, under exceptional circumstances
The appellant has already deposited the compensation amount of Rs. 6 lakhs
and also the fine amount of Rs. 10,000, what remains is to undergo simple
imprisonment for 2 months. Court finds that the trial court while awarding the
sentence of 2 months has not considered the plea which has been urged before this
Court as adverted to in the preceding paragraphs of this order. Neither the Revisional
Court nor the High Court has considered the same. The appellant is the only earning
member in the family and her source of income is also very nominal, barely enough to
maintain herself and her family members and if she undergo simple imprisonment for
a period of two months, then she may end up losing her service, which is the only
source of income for the family.
Taking overall view of the matter, Court thinks that interest of justice would be
subserved if the order regarding simple imprisonment of two months is modified and
in lieu thereof, additional compensation amount of Rs. 50,000 (Rupees fifty thousand
only) is directed to be paid to Respondent 2 within a period of three months.
Accordingly, the appellant is directed to pay an additional compensation amount of Rs.
50,000 to Respondent 2 within a period of three months, failing which the order of
simple imprisonment for two months passed by the trial court shall stand revived.
Priyanka Nagpal vs. State (NCT of Delhi), (2018) 3 SCC 249
Practice and Procedure:
Question of law raised for the first time before Supreme Court – Supreme Court not
obliged to entertain such questions although it may
Questions of law arising out of the application and interpretation of a local
law, in our opinion, ought not to be normally entertained by this court unless such
questions are intertwined with substantial questions of interpretation of the
Constitution. At any rate, such questions, in our opinion, ought not to be examined by
this court as a court of first in- stance when such questions were not either raised or
argued properly before the High Court. Even in those cases where the parties raised
such questions but the High Court failed to examine such questions, this Court cannot
become a substitute for the High Court. Tata Iron and Steel Co. Ltd. V. State of Bihar
2018 (4) Supreme 4
Prevention of Corruption Act:
Sec. 2(c) r/w sec. 8 (m) and 7(b) RP Act, 1951 – A legislature is a public servant in
terms of Act, 1988 – Would be disqualified on conviction for offences under Act.
Provisions already exist in the Prevention of Corruption Act, 1988
(hereafter the PC Act) specifying various activities enumerated therein to
be offences. For example: Under Section 13(1)(e) [13. Criminal
misconduct by a public servant.- (1) A public servant is said to commit the offence of criminal misconduct,
(a) if he habitually accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person any gratification other than legal remuneration as a motive or reward such as is mentioned in section 7; or
xxxxxx xxxxx xxxxxx xxxxx xxxxxx xxxxxx or
(e) if he or any person on his behalf, is in possession or has, at any time during the period of his office, been in possession for which the public servant cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income.
Explanation.-For the purposes of this section, "known sources of income" means income received from any lawful source and such receipt has been intimated in accordance with the provisions of any law, rules or orders for the time being applicable to a public servant. ] of the PC Act, it is misconduct for a public servant to be in possession either personally or through some other person, "of pecuniary resources or property disproportionate to his known sources of income." Under Section 13(2) [Section 13(2) - Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than four years but which may extend to ten years and shall also be liable to fine.], such a misconduct is an offence punishable with imprisonment for a period up to 10 years and also liable to fine.
This Court has already held that a LEGISLATOR is a public servant [P.V. Narasimha Rao V. State, (1998) 4 SCC 626: [1998] 4 Supreme 1/ [1998] 2 Crimes (SC] 124]. Lok Prahari, through Its General secretary S.N. Shukla V. Union of India 2018 (2) Supreme 549
Sec. 19(3) & (c) – Sec. 19(3) (b) permitting stay of proceedings on ground of any error,
omission or irregularity in the sanction – Sec. 19(3) (b) prohibiting stay of proceedings
on any other ground.
‘Any other ground’ in Sec. 19(3)(c), PC Act refers to any ground other than
‘sanction’. Sec. 19(3) (C), pc Act is not a ban on maintainability of a petition u/s 482
Cr.P.C. Articles 226 and 227 are part of basic structure of Constitution. Asian
Resurfacing of Road Agency Pvt. Ltd. V. Central Bureau of Investigation 2018 (3)
Supreme 152
Protection of Children from Sexual Offences Act (POCSO):
Sec. 2(1)(d) – Age whether includes mental age – Provisions of Indian Penal Code, 1860
are on different base and footing – Cannot be applied to POCSO Act
The learned counsel for the appellant relying upon the
said provisions would contend that IPC prescribes protection on the
basis of maturity of understanding to a child, and the same protection
has been extended to persons suffering from unsoundness of mind
and, therefore, it is limpid that a penal law sometimes makes
departure from the chronological age by placing more emphasis on
capacity to understand the nature and consequences of an act. On that
basis, an argument has been structured to treat the mental age of an
adult within the ambit and sweep of the term “age” that pertains to
age under the POCSO Act. In this regard, I am obligated to say what
has been provided in the IPC is on a different base and foundation.
Such a provision does treat the child differently and carves out the
nature of offence in respect of an insane person or person of unsound
mind. There is a prescription by the statute. Learned counsel would
impress upon us that I can adopt the said prescription and apply it to
dictionary clause of POCSO Act so that mental age is considered
within the definition and apply it to dictionary clause of POCSO Act so
that mental age is considered within the definition of the term “age”. I
am not inclined to accept the said submission. Ms. Eera Through Dr.
Manjula Krippendorf V. State (Govt. of NCT of Delhi) 2018 (4)
Supreme 33
Sec. 27 – Child’s medical examination – Mandatory even though POCSO Act not
mentioned in FIR
Sec. 27 stipulates that medical examination of a child in respect
of whom any offence has been committed under the Act is to be
conducted in accordance with section 164A of the Cr.P.C. It is also
significant to note that the said examination has to be done
notwithstanding an FIR or complaint has not been registered for the
offences under the POCSO Act. Ms. Eera Through Dr. Manjula
Krippendorf V. State (Govt. of NCT of Delhi) 2018 (4) Supreme 33
Provincial Small Cause Courts Act:
Sec. 25 – Jurisdiction wider than Revisional Jurisdiction under
Sec. 115 C.P.C. – But pure finding of fact based on appreciation of
evidence may not be interfered with unless it perverse or on no
evidence or on inadmissible evidence or without considering
relevant evidence – Instantly, High Court not even adverting to
reasoning of trial court – No sustainable
A judgment which needs to be noted is judgment of this Court in
Mundri Lal Vs. Sushila Rani(Smt) & Anr., (2007) 8 SCC 609. This Court
held that jurisdiction under Section 25 of the Act, 1887 is wider than the
Revisional Jurisdiction under Section 115 C.P.C. But pure finding of fact
based on appreciation of evidence may not be interfered with, in exercise
of jurisdiction under Section 25 of the Act, 1887. The Court also
explained the circumstances under which, findings can be interfered with
in exercise of jurisdiction under Section25. There are very limited grounds
on which there can be interference in exercise of jurisdiction underSection
25; they are, when (i) Findings are perverse or (ii) based on no material or
(iii) Findings have been arrived at upon taking into consideration
theinadmissible evidences or (iv) Findings have been arrived at without
consideration of relevant evidences.
Present is not a case where High Court set aside the finding of the
Trial Court on any of above grounds where Revisional Court
under Section 25 can interfere. High Court has not even referred to the
reasons given by the Trial Court while coming to the conclusion that the
rate of rent is Rs. 1500/ per month. We thus are of the view that judgment
of the High Court is unsustainable. Trilok Singh Chauhan vs Ram Lal
(Dead) Thr. Lrs. 2018 (4) Supreme 228
Rent Law:
Title of premises – Burden of proving ownership in an eviction suit is not the same like
a title suit
It is a settled principle of law laid down by this Court that in an eviction suit
filed by the landlord against the tenant under the Rent Laws, when the issue of title
over the tenanted premises is raised, the landlord is not expected to prove his title like
what he is required to prove in a title suit.
In other words, the burden of proving the ownership in an eviction suit is not
the same like a title suit.
Similarly, the law relating to derivative title to the landlord and when the
tenant challenges it during subsistence of his tenancy in relation to the demised
property is also fairly well settled. Though by virtue of Section 116 of the Evidence Act,
the tenant is estopped from challenging the title of his landlord, yet the tenant is
entitled to challenge the derivative title of an assignee of the original landlord of the
demised property in an action brought by the assignee against the tenant for his
eviction under the Rent laws. However, this right of a tenant is subject to one caveat
that the tenant has not attorned to the assignee. If the tenant pays rent to the
assignee or otherwise accepts the assignee's title over the demised property, then it
results in creation of the attornment which, in turn, deprives the tenant to challenge
the derivative title of the landlord.
In our considered view, the respondent also attorned to the appellant and
accepted the ownership of the appellant over the suit premises, which is prima facie
proved by the three facts and circumstances as set out below.
The aforesaid three circumstances, in our opinion, are, therefore, more than
sufficient to record a finding that the appellant was prima facie able to prove their title
over the suit premises so also was able to prove the factum of "attornment" made by
the respondent in relation to the suit premises in appellant's favour thereby entitling
the appellant to determine the contractual tenancy which was devolved upon them by
operation of law. Apollo Zipper India Ltd. V. W. Newman and Co. Ltd. 2018(4) Supreme
385
Right to Fair Compensation and transparency in Land Acquisition,
Rehabilitation and Resettlement Act:
Sec. 15(2) – Provision mandatory – Non-compliance of sec. 15(2) –
Proceedings set aside.
In this case, we find that the Collector neither gave any opportunity
to the appellants as contemplated under Section 15(2) of the Act and nor
submitted any report as provided under Section 15(2) of the Act to the
Government so as to enable the Government to take appropriate decision.
In other words, we find that there is non-compliance of Section 15(2) of
the Act by the Collector. In our view, it is mandatory on the part of the
Collector to comply with the procedure prescribed under Section 15(2) of
the Act so as to make the acquisition proceedings legal and in conformity
with the provisions of the Act.
We hereby direct the respondent No.2 herein (Collector, Winter
Field, Shimla-3 HP) to decide the objections filed by the appellants on
05.01.2016 keeping in view the requirements of Section 15(2) of the Act
and pass appropriate orders. Shiv Singh V. State of Himachal Pradesh
2018 (4) Supreme 480
Sec. 24(2)—Abuse of S. 24(2)—Effect on applicability of principle of
restitution
The principle of restitution enjoins a duty upon the courts to do
complete justice to the party at the time of final decision. Successful party
at the end of the litigation has to be placed as far as possible at the same
place unless it would have been had the interim order not being passed. In
doing away the effect of interim order by resorting to fact of restitution is
in fact obligation of the court.
No party can take advantage of litigation; it has to disgorge the
advantage gained due to delay in case lis is lost.
South Eastern Coal Field Ltd. v. State of M.P., (2003) 8 SCC 648,
affirmed
Zafar Khan v. Board of Revenue, 1984 Supp SCC 505; Jai Berham
v. Kedar Nath Marwari, 1922 SCC OnLine PC 41; A. Arunagiri Nadar v.
S.P. Rathinasami, 1970 SCC OnLine Mad 61, cited
The doctrine of restitution in common law principle lies in the
conscience of the court. The concept of restitution is virtually a common
law principle and it is a remedy against unjust enrichment or unjust
benefit. The core of the concept lies in the conscience of the court which
prevents a party from retaining money or some benefit derived from
another which it has received by way of an erroneous decree of court.
Such remedy in English Law is generally different from a remedy in
contract or in tort and falls within a third category of common law remedy
which is called quasi-contract or restitution. The obligation to restitute lies
on the person or the authority that has received unjust benefit. Indore
Development Authority V. Shailendra (Dead) Through Legal
Representatives, (2018) 3 SCC 412
Sec. 24(2)—Sec. 24 does not revive non-existing or dead claims—It
only ensures that claims which were alive would be examined
Once panchnama is drawn and physical possession taken, case
cannot be reopened under guise of S. 24. Sec. 24 is not intended for those
who deliberately refuse to accept compensation, and then indulge in ill-
advised litigation, and often ill-motivated dilatory tactics, for decades
together. It is intended to help those who have not been offered or paid
compensation despite it being the legal obligation of acquiring body so to
do, and/or who have been illegally deprived of their possession for 5 yrs.
Or more; in both scenarios, fault/cause not being attributable to the
landowners/claimants. Fraudulent and stale claims are not at all to be
raised under guise of S. 24 and its misuse is not permissible. Protection by
courts in cases of such blatant misuse of provisions of law not the
intention of S. 24(2). Indore Development Authority V. Shailendra
(Dead) Through Legal Representatives, (2018) 3 SCC 412
Secs. 24(2) and 114—Effect of repeal of 1894 Act
The 2013 Act has repealed the 1894 Act. The repealing and saving
is provided in Section 114 of the 2013 Act. Section 114 indicates that the
repeal of the 1894 Act has been made without prejudice or affect the
general application of Section 6 of the General Clauses Act, 1897.
Therefore, Section 6, General Clauses Act has to be considered.
Section 6 of the General Clauses Act provides that unless a
different intention appears, the repeal shall not revive anything not in
force. Section 6(b) provides that it would not affect any previous
operation of any enactment so repealed or anything duly done or suffered
thereunder. Section 6(e) provides that it will not affect any investigation,
legal proceedings or remedy in respect of any such right, privilege,
obligation, liability, penalty, forfeiture or punishment unless different
intention appears, and any such investigation, legal proceeding or remedy
may be instituted, or continued or enforced, and any such penalty,
forfeiture or punishment may be imposed as if the repealing Act or
Regulation had not been passed. The provisions of Section 6 clearly save
such proceedings and pending litigation has to be decided only on the
basis of the 1894 Act except as provided specifically in the 2013 Act.
Indore Development Authority V. Shailendra (Dead) Through Legal
Representatives, (2018) 3 SCC 412
Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities)Act, 1989:
Ss. 3(1) (ix), 3(2) (vi), 3(2) (vii) & 18- Anticipatory bail- There is not absolute bar to
grant anticipatory bail if no prima facie case is made out or in cases of patent false
implication or when allegation is motivated for extraneous reasons- Mere unilateral
allegation by any individual belonging to any caste, when such allegation is clearly
motivated and false, cannot be treated as applicable when no case is made out or
allegations are patently false or motivated – Whether there is an absolute bar to the
grant of anticipatory bail under the Atrocities Act- Held, No –Whether a preliminary
enquiry is required to be made as to whether the case falls in parameters of the
Atrocities Act- Held, yes- Whether proceedings in the present case where liable to be
quashed- Held, Yes
In the light of submissions made, it is necessary to express concern that
working of the Atrocities Act should not result in perpetuating casteism which can
have an adverse impact on integration of the society and the constitutional values.
Such concern has also been expressed by this Court on several occasions. Secularism is
a basic feature of the Constitution. Irrespective of caste or religion, the Constitution
guarantees equality in its preamble as well as other provisions including Articles 14-16.
The Constitution envisages a cohesive, unified and casteless society.
Court is thus of the view that interpretation of the Atrocities Act should
promote constitutional values of fraternity and integration of the society. This may
require check on false implications of innocent citizens on caste lines
Theoretically it is possible to say that an application under Section 438 of the
Code may be rejected by the Court because of express restrictions in Section 18 of the
Act but the very same court can grant bail under the provisions of Section 437 of the
Code, immediately after the arrest. There seems to be no logical rationale behind this
situation of putting a fetter on grant of anticipatory bail whereas there is no such
prohibition in any way for grant of regular bail. It is, therefore, all the more necessary
and important that the express exclusion under Section 18 of the Act is limited to
genuine cases and inapplicable where no prima facie case is made out.
Court has no quarrel with the proposition laid down in the said judgment that
persons committing offences under the Atrocities Act ought not to be granted
anticipatory bail in the same manner in which the anticipatory bail is granted in other
cases punishable with similar sentence. Still, the question remains whether in cases
where there is no prima facie case under the Act, bar under Section 18 operates can
be considered. We are unable to read the said judgment as laying down that exclusion
is applicable to such situations. If a person is able to show that, prima facie, he has not
committed any atrocity against a member of SC and ST and that the allegation was
mala fide and prima facie false and that prima facie no case was made out, we do not
see any justification for applying Section 18 in such cases. Consideration in the mind of
this Court in Balothia (supra) is that the perpetrators of atrocities should not be
granted anticipatory bail so that they may not terrorise the victims. Consistent with
this view, it can certainly be said that innocent persons against whom there was no
prima facie case or patently false case cannot be subjected to the same treatment as
the persons who are prima facie perpetrators of the crime.
In view of decisions in Vilas Pandurang Pawar (supra) and Shakuntla Devi
(supra), learned ASG has rightly stated that there is no absolute bar to grant
anticipatory bail if no prima facie case is made out inspite of validity of Section 18 of
the Atrocities Act being upheld.
It is well settled that a statute is to be read in the context of the background
and its object. Instead of literal interpretation, the court may, in the present context,
prefer purposive interpretation to achieve the object of law. Doctrine of
proportionality is well known for advancing the object of Articles 14 and 21. A
procedural penal provision affecting liberty of citizen must be read consistent with the
concept of fairness and reasonableness.
In the present context, wisdom of legislature in creating an offence cannot be
questioned but individual justice is a judicial function depending on facts. As a policy,
anticipatory bail may be excluded but exclusion cannot be intended to apply where a
patently malafide version is put forward. Courts have inherent jurisdiction to do justice
and this jurisdiction cannot be intended to be excluded. Thus, exclusion of Court’s
jurisdiction is not to be read as absolute.
Applying the above well known principle, we hold that the exclusion of Section
438 Cr.P.C. applies when a prima facie case of commission of offence under the
Atrocities Act is made. On the other hand, if it can be shown that the allegations are
prima facie motivated and false, such exclusion will not apply.
It is thus patent that in cases under the Atrocities Act, exclusion of right of
anticipatory bail is applicable only if the case is shown to bona fide and that prima
facie it falls under the Atrocities Act and not otherwise. Section 18 does not apply
where there is no prima facie case or to cases of patent false implication or when the
allegation is motivated for extraneous reasons.
Court is conscious that normal rule is to register FIR if any information
discloses commission of a cognizable offence. There are however, exceptions to this
rule.
Court is of the view that cases under the Atrocities Act also fall in exceptional
category where preliminary inquiry must be held. Such inquiry must be time-bound
and should not exceed seven days in view of directions in Lalita Kumari.
As far as the present case is concerned, we find merit in the submissions of
learned amicus that the proceedings against the appellant are liable to be quashed.
Our conclusions are as follows: i) Proceedings in the present case are clear
abuse of process of court and are quashed. ii) There is no absolute bar against grant of
anticipatory bail in cases under the Atrocities Act if no prima facie case is made out or
where on judicial scrutiny the complaint is found to be prima facie mala fide. We
approve the view taken and approach of the Gujarat High Court in Pankaj D Suthar
(supra) and Dr. N.T. Desai (supra) and clarify the judgments of this Court in Balothia
(supra) and Manju Devi (supra); Iii) In view of acknowledged abuse of law of arrest in
cases under the Atrocities Act, arrest of a public servant can only be after approval of
the appointing authority and of a non-public servant after approval by the S.S.P. which
may be granted in appropriate cases if considered necessary for reasons recorded.
Such reasons must be scrutinized by the Magistrate for permitting further detention.
To avoid false implication of an innocent, a preliminary enquiry may be conducted by
the DSP concerned to find out whether the allegations make out a case under the
Atrocities Act and that the allegations are not frivolous or motivated. v) Any violation
of direction (iii) and (iv) will be actionable by way of disciplinary action as well as
contempt. The above directions are prospective. Dr. Subhash Kashinath Mahajan V.
The State of Maharashtra and Anr. 2018 (4) Scale 661
Service Law:
Appointments- Appellants have been in service for a long time –Whether there
appointments ought to be disturbed only on the ground of alleged disputed lack of
qualification –Held, No
The appellants have been in service for a long period, court is of the view that
their appointments ought not be disturbed only on the ground of alleged disputed lack
on qualification. Nahar Singh V. State of U.P. 2018 (6) Scale 567
Bank service – Issuing a cheque from personal account without having sufficient fund
is not a misconduct.
In this case, the Division Bench of the High Court found no error in the view
taken by the learned Single Judge and accordingly dismissed the appeal filed by the
Bank. The Division Bench held that the action by Shukla in issuing a cheque for Rs. 3
lakhs when he had only about Rs. 1,000/- in his account did not amount to misconduct
but was an action personal to him. The High Court also noted that his direction to 'stop
payment' would perhaps have made him liable for some action by his brother but
certainly not by the Bank. UCO Bank V. Rajendra Shankar Shukla 2018 (4) Supreme 257
Compassionate Appointment- Disputes between two ‘wives’ of Deceased –
Consideration of
This is a case of long pending disputes between two ‘wives’ of deceases-
Javaranaika. The matter has travelled through various courts and finally it has reached
this Court. A suggestion was put as to whether one party would be satisfied with
compassionate appointment and leave the rest of the benefits and property to the
other party.
Today, learned counsel for the parties have reported to the Court that with
much persuasion the parties have agreed to the suggestion. Accordingly, as agree, this
appeal is disposed of as follows:
The benefit of compassionate appointment shall go to respondent No. 3/
Revanna Naika J. and all other benefits shall go in favour of Appellant No. 1/ Lakshmi
@laskhmanna. The affidavit of Respondent No. 3/Revanna Naika J. is taken on record.
Respondent No. 4 is directed to process the appointment of Respondent No.
3/ Ravanna Naika J. and do the needful, within a period of two weeks from the date of
production of a copy of this judgment. Lakshmi @Lakshmamma & Ors. v.
Chamundamma & Ors. 2018 (5) Scale 693
Dismissal – Validity of – Punishment of dismissal could not have been imposed after
superannuation
In dealing with these Regulations, it was observed by the Court in paragraph
22 of the Report as follows:- "The respondent, therefore, having been allowed to
superannuate, only a proceeding, inter alia, for withholding of his pension under the
Pension Regulations could have been initiated against the respondent. Discipline and
Appeal Regulations were, thus not attracted. Consequently the charge-sheet, the
enquiry report and the orders of punishment passed by the disciplinary authority and
the appellate authority must be held to be illegal and without jurisdiction." decided on
20th May, 2010
Under the circumstances, we have no hesitation in dismissing the appeal filed
by the Bank also on the ground that the punishment of dismissal could not have been
imposed on Shukla after his superannuation. UCO Bank V. Rajendra Shankar Shukla
2018 (4) Supreme 257
Judicial Services – Fast Track Courts- Service rendered as Fast Track Court Judges-
entitlement to the benefit of period of service rendered as Fast Track Court Judges to
be counted for their length of service in determination of their pension and retiral
benefits
The appellants were not appointed to the Fast Track courts just at the whim
and fancy of any person, but were the next in line on the merit list of a judicial
recruitment process. They were either part of the select list, who could not find a
place given the cadre strength, or those next in line in the select list. Had there been
adequate cadre strength, the recruitment process would have resulted in their
appointment. We do believe that these Judges have rendered services over a period of
nine years and have performed their role as Judges to the satisfaction, otherwise there
would have been no occasion for their appointment to the regular cadre strength. Not
only that, they also went through a second process for such recruitment. Court believe
that it is a matter of great regret that these appellants who have performed the
functions of a Judge to the satisfaction of the competent authorities should be
deprived of their pension and retiral benefits for this period of service. The appellants
were not pressing before us any case of seniority over any person who may have been
recruited subsequently, nor for any other benefit. In fact, court had made it clear to
the appellants that we are only examining the issue of giving the benefits of their
service in the capacity of Fast Track court Judges to be counted towards their length of
service for pensionary and retiral benefits.
The Fast Track Court Scheme was brought in to deal with the
exigency and the appellants were appointed to the Fast Track courts and
continued to work for almost a decade. They were part of the initial select
list/merit list for recruitment to the regular cadre strength but were not
high enough to be recruited in the existing strength. Even at the stage of
absorption in the regular cadre strength, they had to go through a defined
process in pursuance of the judgment of this court and have continued to
work thereafter.
The Court is , thus, unhesitatingly and unequivocally of the view
that all the appellants and Judicial Officers identically situated are entitled
to the benefit of the period of service rendered as Fast Track court Judges
to be counted for their length of service in determination of their pension
and retiral benefits. Mahesh Chandra Verma V. The State of
Jharkhand through Its Chief Secretary, 2018 (7) Scale 343
Judicial Services- Uttar Pradesh Higher Judicial Service Rules, 1975 [As Amend] – Rule
5, 6, 8, 18, 20, 22 & 26- Seniority of promote and direct recruit Higher Judicial Service
Officers in State of Uttar Pradesh – Principle of suitability test and roster system-
Applicability for determining seniority for direct recruits and promotes of the years
2007 and 2009 in the context of Rules 22 and 26 of the Rules
The first issue raised is whether the promotees recruited in the year 2008/2009
are entitled to seniority prior to their selection on the ground that no suitability test
was required prior to 9th January, 2007 and retrospective effect to such requirement
was illegal. We are in agreement with the view taken by the High Court that suitability
test was required in terms of judgment of this Court in All India Judges' case (supra)
and under the amended Rules applicable retrospectively which was duly upheld by this
Court in V.K. Srivastava (supra). Thus, the promotees could not be given promotion
without suitability test nor could they claim seniority without the same. They have
been rightly given seniority from their appointments.
With regard to the Quota-Rota rule, there is no doubt that this is a
mandatory requirement of the Rules. The said requirement has however to
be seen in the peculiar fact situation. The issue of determination of
vacancies was embroiled in continuous litigation. The Quota-Rota rule
could not be applied in the absence of determination of vacancies. The
suitability test though validly laid down could not be held till 2008 for
reasons already noted. No promotion could be given in absence of
suitability test. The rule provided for seniority of the promotees to be
fixed from the date of availability of vacancy but such seniority could also
not be given in the present fact situation. If rota rule is applied, it will
work serious prejudice to the promotees.
Thus, the Rules will have to be given pragmatic interpretation. As
laid down by this Court in Direct Recruit Class-II Engineering Officers'
Association versus State of Maharashtra9, if it becomes impractical to act
upon rule fixing quota from two sources, it is no use insisting that the
authority must give effect to such a rule. Every effort has to be made to
respect a rule but if it is not feasible to enforce it, the rule has to 23 be
given a practical interpretation. Thus, interference by the High Court with
the seniority given to the promotees above the direct recruits without
following the rotation principle cannot be sustained.
Accordingly, the Court allowed the appeal arising out of Special Leave Petition
(Civil) No.26993 of 2017 and dismiss the Writ Petition (SB) No.1880 of 2017 on the file
of the High Court filed by the direct recruits. We uphold the judgment of the High
Court with regard to dismissal of Writ Petition (SB) No.16569 of 2016 filed by the
promotees and dismiss the appeal arising out of Special Leave Petition (civil)
D.No.39750 of 2017. Hon’ble High Court of Judicature at Allahabad- Through Registrar
General V. The State of Uttar Pradesh & Ors. 2018 (5) Scale 176
Promotion – Consideration of – In service matters, especially with regard to
promotion, the aggrieved must approach the Court at the earliest opportunity, or
within a reasonable time thereafter.
In service matters, especially with regard to promotion, there is always an
urgency. The aggrieved must approach the Court at the earliest opportunity, or within
a reasonable time thereafter as third party rights accrue in the meantime to those who
are subsequently promoted. Such persons continue to work on the promotional post,
ensconced in their belief of the protection available to them in service with regard to
seniority. Any belated interference with the same is bound to have adverse effect on
those already promoted affecting their morale in service also. Additionally, any
directions at a belated stage to consider others for promotion with retrospective
effect, after considerable time is bound to have serious administrative implications
apart from the financial burden on the government that would follow by such orders
of promotion. Union of India V. Chaman Rana 2018 (4) Supreme 105
Regularization—Non-entitlement—Question of regularization of
daily wager appointed contrary to law does not arise
The cases of these persons, including the appellant, were duly
considered by the University, on the basis of which order dated August
13, 2003 were passed refusing regularisation. This order specifically states
that the initial appointment of the appellant and others was not in
accordance with law. It was made without advertisement and there was no
recommendation of panel by the Selection Committee. So much so, the
appointments were not made by the competent authority. Court finds that
the University, or for that matter, the Government had agreed to regularize
the services of those employees of the colleges, which had become the
Constituent Colleges, only on the condition that their initial appointment
was after following the due procedure and that too against the sanctioned
post. A statement was made at the Bar by learned counsel for the
respondent that there were no sanctioned posts even now.
Law pertaining to regularization has now been authoritatively
determined by a Constitution Bench judgment of this Court in Secretary,
State of Karnataka & Ors. v. Umadevi & Ors., (2006) 4 SCC 1. On the
application of law laid down in that case, it is clear that the question of
regularisation of daily wager appointed contrary to law does not arise.
This ratio of the judgment could not be disputed by the learned counsel
for the appellant as well. That is why she continued to plead that the
appointment of the appellant was made after following due procedure and
in accordance with law. However, that is not borne from the records.
Pertinently, order dated August 13, 2003, vide which the appellant was
refused regularisation on the aforesaid ground was not even assailed by
the appellant at that time. It may be mentioned that in Uma Devi, the
Court left a small window opened for those who were working on ad hoc/
daily wage basis for more than ten years, to regularise them as a one-time
measure. However, that was also subject to the condition that they should
have been appointed in duly sanctioned post. Further, while counting their
ten years period, those cases were to be excluded where such persons
continued to work under the cover of orders of the courts or the tribunal.
The High Court has, in the impugned judgment, discussed these nuances
and has also referred to the judgment in Uma Devi and held that the
benefit of one-time measure suggested in that case could not be extended
to the appellant. Upendra Singh V. State of Bihar, (2018) 3 SCC 680
Termination – On completion of probation period – Not punitive – Although
misconduct was alleged, it cannot be said to be foundation of termination.
A plain reading of the Order dated 31st December, 2008 would show that it is
an innocuous order terminating the services of Respondent No.1 at the end of the
probation period. As no allegations of misconduct are made in the Order, there is no
stigma. Even the High Court is of the opinion that there is no stigma. The fact remains
that there was a preliminary inquiry conducted by the Management in which there
was a prima facie finding recorded against the Respondent No.1 of his involvement in
an act of misconduct. The Appellants decided not to proceed further and hold a
detailed inquiry to prove the misconduct of Respondent No.1. However, the service of
Respondent No.1 was terminated at the end of the period of probation which cannot
be said punitive. Therefore, the Order dated 31st December, 2008 is an order of
termination simpliciter. In view of the above it cannot be said that misconduct was the
foundation for the order of termination. Director, Aryabhatta Research Institute of
Observational Sciences (ARIES) V. Devendra Joshi
Specific Relief Act:
Sec. 12 – Specific performance of agreement can be ordered only when the person
allegedly executing an agreement to sell has right of transferring the property
The Court can order specific performance of an agreement only when it is
proved that a person allegedly executing an agreement to sell has right of transferring
the property. When defendants have denied their entitlement and right, title and
interest in the suit property, the said question was necessary to be answered before
decreeing the suit. The trial court after noticing the said pleading on behalf of the
defendants did not enter into this question or returned any finding that defendants
are owner of the suit property. Further, essential findings pertaining to right of the
defendant to transfer the property being not there, the passing of a decree of specific
performance was clearly erroneous. The Appellate Court has rightly set aside the
decree of specific performance of contract after recording the finding that defendant
No.1 is not the owner of the property.
In view of the above findings recorded by the First Appellate Court, the suit
was rightly dismissed. The High Court has also rightly dismissed the Regular Second
Appeal holding that it does not contain any substantial question of law. Dharmabiri
Ran Pramod Kumar Sharma (D) Through LRs. 2018 (3) Supreme 403
Sec. 16 – Plaintiff must plead and prove his readiness and willingness to perform his
part of the contract all through
As regards suit for specific performance, the law is very clear that the plaintiff
must plead and prove his readiness and willingness to perform his part of the contract
all through i.e., right from the date of the contract till the date of hearing of the suit.
The factual aspects as detailed above are quite clear that respondent No.1 had
completely failed in his obligations and was not ready and willing to perform his part
of the contract. Even going by the case set up by respondent No.1, that around
29.07.2002 an arrangement was arrived at, under which out of the balance amount
Rs.19.5 lakhs, Rs. 13.5 lakhs were to be made over by respondent No.1 to the Bank
directly and rest of the sum of Rs.6 lakhs was to be paid to the appellant in cash, the
facts do not indicate any observance of these conditions. Beyond filing an application
for impleadment which came to be dismissed, respondent No.1 did not take any step.
The amount of Rs.13.5 lakhs was independently deposited and discharge was obtained
by the appellant.
We, therefore, reject the claim of respondent No.1 and hold that the suit for
specific performance preferred by respondent No.1 is required to be dismissed. At the
same time we accept the counter claim made by the appellant and hold that he is
entitled to recovery of possession.
Allowing the appeal, we therefore direct:-
The suit for specific performance filed by respondent No. 1 is dismissed.
Respondent No.1 shall be entitled to the refund of sum of Rs.18 lakhs paid by way of
advance under the suit agreement. P. Meenakshisundaram V. P. Vijayakumar 2018 (3)
Supreme 181
Transfer of Property Act:
Sec. 106 – Tenant not replying to quit notice u/s 106 – Objection available to him, if
any, deemed to be waived.
This Court held that if the defendant does not raise any objection to the
validity of quit notice at the first available opportunity, the objection will be deemed
to have been waived. Apollo Zipper India Ltd. V. W.Newman and Co. Ltd. 2018 (4)
Supreme 385
U.P. Urban Buildings (Regulation of Letting, Rent and Eviction ) Act:
Ss. 3(g), 20(2) (a), 20(4), Proviso –Applicability of – Applicability of proviso to Section
20(4) of the Act where the tenant or any member of his family has build house or
acquired it and got its vacant possession situated in the same city
Reading of Section 20(4) of the Act would go to show that when a
landlord files a suit against his tenant seeking his eviction from the
tenanted premises on the ground of arrears of rent as specified under
Section 20(2)(a) of the Act, the Court has a discretion to pass a decree for
eviction against the tenant, in case the Court finds that the tenant has
ensured compliance of the requirements of Section 20(4) of the Act by
depositing the rent, its arrears and damages together with interest as
specified therein.
In other words, if the Court finds that the tenant has ensured
compliance of conditions specified in sub-section (4) of Section 20 of the
Act at the first hearing of the suit filed by his landlord for his eviction on
the ground of arrears of rent under Section 20(2) of the Act, it is the
discretion of the Court to either pass a decree for eviction against the
tenant or relieve him from the rigor of the eviction decree.
The proviso, however, provides that sub-section(4) of Section 20
of the Act will not apply, if it is proved that a tenant or any member of his
family, has either built or otherwise acquired the house in a vacant state,
or has got vacated after acquisition, any residential building in the same
city, municipality, notified area or town area.
In our opinion, in order to attract the proviso, three facts need to be
proved. First, the tenant or any member of his family, as specified under
Section 3(g), has either built or otherwise acquired any residential
building; Second, such residential building is in a vacant state; and third,
such vacant residential building is situated in the same city, municipality,
notified area or town area where the suit tenanted premises is situated.
Once these three facts are proved, the proviso would apply against
the tenant disentitling him to claim the benefit of sub-section (4) of
Section 20 to avoid decree for his eviction passed against him under
Section 20(2)(a) of the Act. Smt. Sudama Devi & Ors. v. Vijay Nath
Gupta & Anr., 2018 (6) Scale 10
Sec. 20 (4) – Tenant ensuring compliance of section 20(4) , i.e., depositing arrears of
rent at first hearing – Court may or may not order eviction in its discretion.
Reading of Section 20(4) of the Act would go to show that when a landlord
files a suit against his tenant seeking his eviction from the tenanted premises on the
ground of arrears of rent as specified under Section 20(2)(a) of the Act, the Court has a
discretion to pass a decree for eviction against the tenant, in case the Court finds that
the tenant has ensured compliance of the requirements of Section 20(4) of the Act by
depositing the rent, its arrears and damages together with interest as specified
therein.
In other words, if the Court finds that the tenant has ensured compliance of
conditions specified in sub-section (4) of Section 20 of the Act at the first hearing of
the suit filed by his landlord for his eviction on the ground of arrears of rent under
Section 20(2) of the Act, it is the discretion of the Court to either pass a decree for
eviction against the tenant or relieve him from the rigor of the eviction decree. Smt.
Sudama Devi V. Vijay Nath Gupta 2018 (4) Supreme 352
Sec. 20(4), Proviso – Attractibility of
In order to attract the proviso, three facts need to be proved. First, the tenant
or any member of his family, as specified under Section 3(g), has either built or
otherwise acquired any residential building; Second, such residential building is in a
vacant state; and third, such vacant residential building is situated in the same city,
municipality, notified area or town area where the suit tenanted premises is situated.
Once these three facts are proved, the proviso would apply against the tenant
disentitling him to claim the benefit of sub-section (4) of Section 20 to avoid decree for
his eviction passed against him under Section 20(2)(a) of the Act. Smt. Sudama Devi V.
Vijay Nath Gupta 2018 (4) Supreme 352
Words and Phrases:
Euthanasia – Active and passive – Euthanasia, an intentional premature termination of
another person’s life – Active, if by direct intervention – Passive if by withholding life -
prolonging measures and resources
Euthanasia is basically an intentional premature termination of another
person's life either by direct intervention (active euthanasia) or by withholding life-
prolonging measures and resources (passive euthanasia) either at the express or
implied request of that person (voluntary euthanasia) or in the absence of such
approval/consent (non-voluntary euthanasia). Aruna Shanbaug has discussed about
two categories of euthanasia - active and passive. While dealing with active
euthanasia, also known as "positive euthanasia" or "aggressive euthanasia", it has
been stated that the said type of euthanasia entails a positive act or affirmative action
or act of commission entailing the use of lethal substances or forces to cause the
intentional death of a person by direct intervention, e.g., a lethal injection given to a
person with terminal cancer who is in terrible agony. Passive euthanasia, on the other
hand, also called "negative euthanasia" or "non-aggressive euthanasia", entails
withdrawing of life support measures or withholding of medical treatment for
continuance of life, e.g., withholding of antibiotics in case of a patient where death is
likely to occur as a result of not giving the said antibiotics or removal of the heart lung
machine from a patient in coma. Common Cause (A Registered Society) V. Union of
India 2018 (2) Supreme 164
It is perhaps due to the distinction evolved between these two forms of
euthanasia, which has gained moral and legal sanctity all over, that most of the
countries today have legalized passive euthanasia either by way of legislations or
through judicial interpretation but there remains uncertainty whether active
euthanasia should be granted legal status.
Emphasizing on the patient's best interest principle, Lord Goff referred to F v.
West Berkshire Health Authority21 wherein the House of Lords stated the legal
principles governing the treatment of a patient who, for the reason that he was of
unsound mind or that he had been rendered unconscious by accident or by illness, was
incapable of stating whether or not he consented to the treatment or care. In such
circumstances, a doctor may lawfully treat such a patient if he acts in his best
interests, and indeed, if the patient is already in his care, he is under a duty so to treat
him. Common Cause (A Registered Society) V. Union of India 2018 (2) Supreme 164
Euthanasia – Origin – Greek words “eu” and “thanotos” literally meaning “good death”
– Also described as “mercy killing”
The Law Commission of India submitted its 241st report which dealt with
'Passive Euthanasia - A Relook'. The report in its introduction has dealt with the origin
of the concept of 115 euthanasia. It states that the word "Euthanasia" is derived from
the Greek words "eu" and "thanotos" which literally mean "good death" and is
otherwise described as "mercy killing". The word euthanasia, as pointed out in the
Report, was used by Francis Bacon in the 17th Century to refer to an easy, painless and
happy death as it is the duty and responsibility of the physician to alleviate the
physical suffering of the body of the patient.
A reference has also been made in the Report to the meaning given to the
term by the House of Lords. The Select Committee on "Medical Ethics" in England
defined Euthanasia as "a deliberate intervention undertaken with the express
intention of ending a life to relieve intractable suffering". Impressing upon the
voluntary nature of euthanasia, the report has rightly highlighted the clarification as
provided by the European Association of Palliative Care (EAPC) Ethics Task Force in a
discussion on Euthanasia in 2003 to the effect that "medicalised killing of a person
without the person's consent, whether non-voluntary (where the person is unable to
consent) or involuntary (against the person's will) is not euthanasia: it is a murder."
Common Cause (A Registered Society) V. Union of India 2018 (2) Supreme 164
―Consent‖ and ―Admission‖ – Every consent involves a
submission but the converse does not follow – An act of helpless
resignation could not be treated as consent.
A distinction was drawn between “consent” and “admission” and
ruled that every consent involves a submission but the converse does not
follow and an act of helpless resignation could not be treated as a consent.
Ms. Eera through Dr. Manjula Krippendorf V. State (Govt. of NCT
of Delhi) 2018(4) Supreme 33
The word ‘accompanied’ and the terms ‘accompany’—Meaning of-
The word used in the Rule is ‘accompanied’ and the term ‘accompany’ means
to co-exist or go along. There cannot be a separation or segregation. Sitaram V.
Radhey Shyam Vishnav, (2018) 4 SCC 507
Word “by” or “under any law”—Difference, explained
“By” means by a provision directly enacted in the statute in question and
which is gatherable from its express language or by necessary implication therefrom
while “under the law” signifies what is not directly to be found in the statute itself but
is conferred or imposed by virtue of powers enabling this to be done. Lok Prahari
through its General Secretary V. Union of India, (2018) 4 SCC 699
Part –I (High Court)
Administration of Justice:
Doctrine of Legitimate Expectation –Scope & Applicability
In the present case, petitioners got engagement as a contractual worker
without any proper selection. Therefore they cannot even invoke the theory of
legitimate expectation for regularization as they knew the consequences of
contractual appointment. Since the appointment of the petitioners was not consistent
with the scheme for public employment, the same would not confer any right on the
petitioners. Their contractual engagement came to an end when it was discontinued.
Therefore, this Court acting under Article 226 of the Constitution of India can not issue
direction for continuance in employment, absorption or regularization. Shiv Pratap and
others V. State of U.P. and other, 2018 (36) LCD 1083
Arms Act :
Sec. 17(3) –Cancellation of Arms Licence- Mere involvement in criminal case-–Not
sufficient ground for passing of an order of suspension or revocation of licence under
Section 17
A perusal of sub section (3) of Section 17 of the Act would show that the
firearm licence could be suspended or revoked by the licensing authority inter alia on
the following rounds:
(i) If the licensing authority is satisfied that it was necessary for the
security of the public peace or for the public safety to suspend or revoke
the licence.
(ii) If any of the conditions of the licence has been contravened
A perusal of the impugned order dated 4.2.2009 would show that the licence
of the petitioner has been cancelled only on the ground of pendency of a solitary
criminal case mentioned in the said order. It is no more res integral that mere
pendency of a criminal case or apprehension of abuse of arms is not a sufficient
ground for passing of an order of suspension or revocation of licence under section 17
of the Act. Ram Charan v. State of U.P. and others, 2018(36) LCD 1178
Sec. 17 (3) –Scope & Applicability- The cancellation order have been passed in cursory
manner without due considerations on the applicability or conditions required for
invocation of the provisions of Sec. 17(3) of the Act in the matter- Impugned Orders
set aside
In this case, it is notable that none of the conditions of Section 17 (3) of the
Act have been violated by the petitioner and the arms license could not have been
revoked under Section 17 (3) of the Arms Act.
Impugned order also says that the petitioner refused to take notice and he did
not appear in the court of licencing authority, hence, it appears that he is not a law
abiding citizen. This Court wonders whether absence of appearance/notice can entitle
the licensing authority to cancel the licences under Section 17 (3) of the said Act. By
reading the impugned order and the counter affidavit the Court is not convinced that
there was enough matterial before the licensing authority to come to the conclusion
that condition of Section 17 (3) can be invoked against the petitioner and the arms'
licenses can be cancelled.
The Court finds that the orders dated 3.4.2013 passed by District Magistrate,
District Barabanki and the appellate order dated 9.4.2014 have been passed in cursory
manner and not based on due considerations.
In view of above, the writ petition is allowed. The orders dated 3.4.2013
passed by District Magistrate, District Barabanki and the appellate order dated
9.4.2014 both are set aside. Maskoor V. State of U.P. and others, 2018(36) LCD 1319
Civil Procedure Code:
Sec. 10- Suit proceedings- Application to stay- Exercising power under Sec. 10 of the
Code – Consideration for
By instant petition filed under Article 227 of the Constitution, the petitioners
have challenged the order dated 24.1.2017 passed by the trial Court in Original Suit
No. 83/2012 rejecting their application 42Ga. The said application was filed by the
petitioners, who are defendants in the suit, with the prayer to stay the proceedings of
the suit in exercise of power under Section 10 CPC, in view of the pendency of the
Second Appeal No. 805/2014 between the same parties before this Court, arising out
of Original Suit No. 233/1998.
The trial Court has recorded a categorical finding in the impugned order that
the second appeal filed by the petitioners before this Court has not been admitted so
far, and therefore, Section 10 would not be applicable. The petitioners being aggrieved
by the order of the trial Court filed a revision, which has also been dismissed by
impugned order dated 30.10.2017.
Counsel for the petitioners submitted that once a second appeal has been
presented before this Court, the proceedings of the suit shall be deemed to be
continuing, and thus, Section 10 would come into play.
Normally, where a statute prescribes an appellate forum and an appeal is filed,
then for all intent and purpose, the suit continues. However, where certain conditions
are prescribed in the statute, subject to fulfillment of which the appeal could be
entertained, unless those conditions are fulfilled, mere filing of appeal would not be
treated to be continuation of the proceedings. A second appeal before the High Court
filed under Section 100 CPC is entertainable only if it involves a substantial question of
law and the High Court is satisfied about the same. It is implicit that mere filing of an
appeal could not be treated as continuation of the proceedings of the suit unless the
High Court satisfies itself that a substantial question of law is involved therein and
admits the appeal after formulating the question. A mere presentation of the memo of
appeal before the High Court without the same being admitted, would not attract
Section 10 CPC.
In such view of the matter, this Court does not find any illegality in the
impugned orders passed by the Courts below. The petition lacks merit and is
dismissed. Rooprani Jina V. Deep Chand Jain @ Deelep Jain, 2018 (2) AWC 1098
Sec. 24-U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 –
Section 34 and 38 –Transfer application –Under Section 24 of C.P.C. –Maintainability of
–Provisions of Section 24 of C.P.C. could not be invoked for seeking transfer of Rent
Control Appeal- Transfer application dismissed as not maintainable
This transfer application has been filed seeking transfer of a Rent Control
Appeal No. 13 of 2017, (Badam Singh and another v. Kamal Singh Sareen), filed by the
applicant a tenant of house No. 85 of 181, Collector Ganj, Hapur.
In my considered opinion, the primary question, which arises for consideration
in this transfer application is whether Section 24, C.P.C. can be invoked y the applicant
for transfer of a rent control appeal.
Since, only some provisions of the Civil Procedure Code have been made
applicable to the proceedings under the U.P. Act No. 13 of 1972 and Section 24, CPC is
not one of them, the said section, in my considered opinion, cannot be applicable to
proceedings under the Act.
This Court is constrained to hold that the U.P. Act No. 13 of 1972 is a complete
code in itself and only such provisions of the Civil Procedure code are attracted to
proceedings there under which provisions have been made specifically applicable.
Section 24, CPC not having been made specifically applicable, it is not
attracted in the proceedings at hand. For this reason alone this provision cannot be
invoked for seeking transfer of a Rent Control appeal.
The instant transfer application is therefore, found to be not maintainable and
is dismissed, as such. Badam Singh Daroga (D) V. Kamal Singh Sareen, 2018 (2) AWC
1678
O. 1 R. 10 –Scope of –Power of the Court under O. 1 R. 10 CPC is much wider than
merely look into as to whether any relief is sought against the defendant or not
Present civil revision is filed by the revisionist challenging the order dated
25.2.2005 passed by learned Additional District Judge/ F.T.C. -1 Lakhimpur Kheri. By
the impugned order, the learned court below has allowed application No. 82-Ga2, filed
under Order 1 Rule 10 C.P.C. for deleting the name of defendant No. 2 from the array
of parties
Admittedly, revisionist/ defendant No. 2 is a necessary party whose presence
is required for disposal of the suit. For that reason only, he was made a defendant in
the plaint. Now at a later stage, merely on the ground that no relief is being sought
against him, his name cannot be deleted. The power of the Court under Order 1 Rule
10 CPC is much wider than merely look into as to whether any relief is sought against
the defendant or not. The law is settled by the judgment in case of Vidur Impex of the
Hon’ble Supreme Court.
In view of the admitted situation that revisionist/ defendant No. 2 has interest
in the property and in the proper disposal of the preset suit, no fault could be found of
his being a party to the suit. Ram Kishore Seth V. Bhagwan Shri Laxmi Narayan Mandir
Trust and others, 2018 (36) LCD 1176
O. 6, R. 17 Proviso- Amendment of pleadings- Scope- Held, provision is mandatory and
precludes a party to seek amendment of his pleading once the Trail has commenced –
Unless the requirement of proviso itself is satisfied
In Ajendraprasadji N. Pande v. Swami Keshavprakeshdasji N., AIR 2007 SC 806
Court has held that Order 6 Rule 17 CPC as amended by Amendment Act, 2002 does
not permit an amendment once the Trail has commenced unless despite due diligence,
matter could not be raised before the commencement of Trial. The Court held that
provision is mandatory and precludes a party to seek amendment of his pleadings
once the Trial has commenced unless the requirement of proviso itself is satisfied. In
taking this view, the Apex Court also referred to and relied on its earlier decision in
Salem Advocate Bar Association v. Union of India, AIR 2005 SC 3353. Smt. Anju v.
Satish Kumar, 2018 (36) LCD 849
O. 6, R. 17- Amendment in written statement – Rejection of application for-
Amendment sought by defendant- Petitioner after about 26 years of filing of written
statement and rejection of his application found to be not bona fide- But was found to
be mala fide- Attempt with intent to delay disposal of case- Rejection of amendment
application held to be wholly justified
This petition under Article 227 of the Constitution of India has been filed
praying to set aside the impugned order dated 26.9.2017 in S.C.C. Suit No.319 of 1991
(Smt. Rijwan Amra and another v. Mohd. Mustahsan Siddiqui) passed by the Judge
Small Causes Court, Kanpur Nagar and the order dated 15.12.2017 in S.C.C. Revision
No.117 of 2017 (Mohd. Mustahsan Siddiqui v. Smt. Rijwan Amra and another) passed
by the District Judge, Kanpur Nagar. A further prayer has been made for a direction to
decide Amedment application dated 13.7.2017 being paper No.226C/4 on merits.
In the case of Smt. Maya Devi (supra) this Court considered the provisions of
Order VI Rule 17 C.P.C. and held as under :
"8.In order to find out whether the application of the defendant under Order
VI Rule 17 for amendment of written statement was bonafide and sustainable at the
appellate stage of the second original suit stage or not, it is useful to refer to the
relevant provisions of Order 6 Rule 17 C.P.C. as under:
"17. Amendment of pleadings:- The Court may at any stage of the proceedings
allow either party to alter or amend his pleadings in such manner and on such terms as
may be just, and all such amendments shall be made as may be necessary for the
purpose of determining the real questions in controversy between the parties:
Provided that no application for amendment shall be allowed after the trial
has commenced, unless the Court comes to the conclusion that in spite of due
diligence, the party could not have raised the matter before the commencement of
trial." . This Rule was omitted by the Code of Civil Procedure (Amendment) Act, 1999.
However, before the enforcement of the Code of Civil Procedure (Amendment) Act,
1999, the original rule was substituted and restored with an additional proviso. The
proviso limits the power to allow amendment after the commencement of trial but
grants discretion to the court to allow amendment if it feels that the party could not
have raised the matter before the commencement of trial in spite of due diligence. It is
true that the power to allow amendment should be liberally exercised. The liberal
principles which guide the exercise of discretion in allowing the amendment are that
multiplicity of proceedings should be avoided, that amendments which do not totally
alter the character of an action should be granted, while care should be taken to see
that injustice and prejudice of an irremediable character are not inflicted upon the
opposite party under pretence of amendment.
10. The proviso to Order VI Rule 17 C.P.C. specifically provides that no
application for amendment shall be allowed after the trial is commenced unless the
court comes to the conclusion that inspite of due diligence the party could not have
raised the matter before the commencement of trial.
In the case of Chander Kanta Bansal Vs. Rajinder Singh Anand1 Hon'ble
Supreme Court considered the meaning of the word "due diligence" used in the
proviso to Order VI Rule 17 C.P.C. and held as under:
The words "due diligence" has not been defined in the Code. According to
Oxford Dictionary (Edition 2006), the word "diligence" means careful and persistent
application or effort. "Diligent" means careful and steady in application to one's work
and duties, showing care and effort. As per Black's Law Dictionary (Eighth Edition),
"diligence" means a continual effort to accomplish something, care; caution; the
attention and care required from a person in a given situation. "Due diligence" means
the diligence reasonably expected from, and ordinarily exercised by, a person who
seeks to satisfy a legal requirement or to discharge an obligation. According to Words
and Phrases by Drain-Dyspnea (Permanent Edition 13A) "due diligence", in law, means
doing everything reasonable, not everything possible. "Due diligence" means
reasonable diligence; it means such diligence as a prudent man would exercise in the
conduct of his own affairs.
Applying on the facts of the present case, the principles of law laid down in the
afore-noted judgments, I find that the amendment sought by the defendant-petitioner
after about 26 years of filing of the written statement and rejection of his application
14-Ga, was not bonafide, but it was malafide attempt with an intent to delay disposal
of the case. Under the circumstances, the rejection of the amendment application is
wholly justified. Mohd. Mustahsan Siddiquit v. Smt. Rijwan Amra and another, 2018 (2)
AWC 1260
O. 7, R. 11-Rejection of Plaint-Application for-On ground suit being barred under S 10,
CPC-Application rejected- The plea regarding applicability of S. 10, CPC not pressed for
rejecting plaint- The plaint could not be rejected under S. 10, CPC as the provisions
thereof does not bar institution of any suit, but only provides that in case the matter in
issue is also directly and substantially in issue in a previously instituted suit between
the same parties, the subsequently instituted suit shall be stayed-For considering an
application under O. VII,R. 11, CPC, only the averments made in plaint or the
documents annexed therewith court be examined-Rejection proper.
From the perusal of the impugned orders, it does not appear that plea
regarding applicability of Section 10 of CPC was pressed for rejecting the plaint. In any
case, the plaint could not be rejected under Section 10 of CPC, as the provisions
thereof does not bar institution of any suit, but only provides that in case the matter in
issue is also directly and substantially in issue in a previously instituted suit between
the same parties, the subsequently instituted suit shall be stayed.
It is settled law that for considering an application under Order 7, Rule 11 of
CPC, only the averments made in the plaint or the documents annexed therewith
could be examined. The case of the defendants could not be examined while
considering a plea for rejection of plaint under order 7, Rule 11 of CPC. In such view of
the matter, the revisional Court has rightly observed that the case of the defendants
that suit land is agricultural in nature, shall be examined after an issue is struck
between the parties in that regard. This Court does not find any illegality in the view
expressed by the Courts below.
Accordingly, this Court while declining to interfere with the impugned orders,
leaves it open to the petitioner to raise all pleas and contentions before the trial Court,
after the issues are struck.
The petition stands disposed of accordingly. Syed Ali Shabbar Abidi V.
Muzaffar Ahmed and 2 others, 2018(1) ARC 832.
O. 15 R. 5 – Provincial Small Causes Courts Act, 1887, Sec. 25- Deposit of admitted rent
on the first date of hearing – Question as to the first date of hearing – Held , is a vital
question, may be decided after framing of issues, on the basis of evidence, and giving
opportunity of hearing to the parties concerned
The question as to whether 6.12.2017 was the first date of hearing or not is a
vital question which may be decided after framing of issues and on the basis of
evidence on record and giving opportunity of hearing to the parties concerned, as
such, court is of the considered view that this question may be considered by the
Court concerned at the stage of hearing. The required amount which the respondents-
defendants are required to deposit pursuant to the impugned order dated 16.3.208
shall be deposited subject to the decision in the suit and it shall be at their own risk of
respondents – defendants. Ramesh Prasad Jaiswal v. Purushotham Narain and
another, 2018 (36) LCD 861
O. 22, Rr.3 and 5- Application for substitution/transposing as plaintiff-On basis of a
Will- Application allowed-Provision of substitution as contained in Order XXII, R. 3, CPC
is that in case the sole surviving plaintiff dies and the right to sue survives, the Court
may on an application implead the legal representative as a party and shall proceed
with the suit-Therefore, it is a condition precedent before disposing of the substitution
application that the Court should examine as to whether the right to sue survives but
in the present case without going into this important question, the Court has allowed
the substitution application which is not correct-Allowing improper, Court below
directed to consider substitution application fresh.
The Provision of substitution as contained in Order 22 Rule 3 CPC is that in
case the sole surviving plaintiff dies and the right to sue survives, the Court may on an
application implead the legal representative as a party and shall proceed with the suit.
Therefore, it is a condition precedent before disposing of the substitution application
that the Court should examine as to whether the right to sue survives but in the
present case without going into this important question, the Court has allowed the
substitution application, which is not correct.
In view of the above, the writ petition succeeds and the orders impugned in
this writ petition, referred to above, are set aside. It is directed that the trial Court
shall consider the application of the respondent for substitution afresh in the light of
the observations made herein above and the relevant provision of substitution, as
expeditiously as possible. Om Prakash V.Chandra Prakash, 2018(2) ARC 118 (L.B.)
O.43, R.1 (k) and Section 151- Conversion of appeal into revision - Power to convert
appeal into revision was to be exercised under Sec. 151, CPC in appropriate cases
This petition under Article 227 of the Constitution of India, has been filed
praying to set aside the impugned order dated 17.7.2017 passed by District Judge,
Hamirpur in J.S.C.C. Revision No. nil of 2017 ( Farog Uddin Jafri v. Sumitra Devi
(deceased ) and others ), whereby the appeal filed by the respondent-plaintiff under
Order 43 Rule 1 (k) C.P.C. within limitation has been permitted to be converted in
revision subject to payment of cost of Rs.150/-.
Learned counsel for the petitioners submits that the order impugned is wholly
illegal and, therefore, it deserves to be set aside. The appeal could not be converted
into a revision.
I do not find any substance in the submissions of the learned counsel for the
defendant-petitioners, inasmuch as the power to convert an appeal into revision may
be exercised under Section 151 C.P.C. in appropriate cases.
In the present set of facts, I find that against the order dated 3.3.2017, abating
JSCC No.3 of 2004 ( Farog Uddin Jafri v. Sumitra Devi (deceased ) and others ), the
plaintiff-respondent filed Misc. Appeal No.11 of 2017 on 27.3.2017, under Order 43
Rule 1(k) C.P.C. An objection was filed by the petitioners-defendant herein on 6.5.2017
alleging that the appeal is not maintainable. Consequently, on 3.7.2017 the
respondents-plaintiffs filed an application for amendment in the memo of the
aforesaid Misc. Appeal by converting it as J.S.C.C. revision. By the impugned order
dated 17.7.2017, the Application 19-C1 filed for conversion of the appeal into revision
was allowed on payment of cost of Rs.150/-. Mistake in filing the appeal instead of
revision was bonafide. It is settled law that if upon legal advise, a party chose a wrong
legal remedy but the right forum and, thereafter, upon realizing that the proper
remedy would be under a different provision, an application is filed for converting the
application preferred, the ends of justice demands that such conversion be allowed.
In view of the aforesaid, it does not seem appropriate to interfere with the
impugned order dated 17.7.2017 in exercise of power under Article 227 of the
Constitution of India. Even otherwise, in view of the law laid down by this Court in the
case of Bahori (supra), Umardeen (supra) and Prem Narayan Dwivedi (supra), I do not
find any error of law in the impugned order. Therefore, the petition deserves to be
dismissed. Radhey Shyam Varshney and other v. Raroghuddin Jafri and another, 2018
(2) AWC 1758
O. 47 R. 1- Review- Scope –Reiterated that the review petition can be entertained only
on the ground of error apparent on record and not on any other ground
The law laid down in the case of Meera Bhanja (Smt.) v. Mirmala Kumar
Choudhary (Smt.), reported in (1995) 1 SCC 170 , wherein the Hon’ble the Apex Court
has held that “the Review petition can be entertained only on the ground of error
apparent on the face of record not on any other ground. Any error apparent on the
face on record must be such an error which must strike one on mere looking at the
record and would not require any long drawn process of reasoning on points where
there may conceivably be two opinion. Re-Appraisal of the entire evidence or error
would amount to exercise of appellate jurisdiction which is not permissible” by way of
review application.
In the cae of Parison Devi and others v. Sumitri Devi and othrs, reported in
(1997) 8 SCC 715, Hon’ble the Apex Court has held as under:
“Under Order 47 Rule 1 CPC a judgment may be open to review inter alia if
there is a mistake or an error apparent on the face of the record. An error which is not
self evident and has to be detected by a process or reasoning, can hardly be said to be
an error apparent on the face of the record justifying the court to exercise its power of
review under Order 47 Rule 1 CPC. In exercise of the jurisdiction under Order 47 Rule
1 CPC it is not permissible for an erroneous decision to be “reheard and corrected”. A
review petition, it must be remembered has a limited purpose and cannot be allowed
to be “an appeal in disguise” Ram Ekwal Prasad v. Union of India and others, 2018 (36)
LCD 1012
Review- Maintainability –Grounds
Review is not an appeal in disguise. Rehearing of the matter is impermissible in
the garb of review. It is an exception to the general rule that once a judgment is signed
or pronounced, it should not be altered. In Lily Thomas v. Union of India, AIR 2000 SC
1650, The Court said that power of review can be exercised for correction of a mistake
and not to substitute a new. Such powers can be exercised within limits of the statute
dealing with the exercise of power.
Summary of the Principles:
20. Thus, in view of the above, the following grounds of review are
maintainable as stipulated by the statute:
20. 1. When the review will be maintainable:-
(i) Discovery of new and important matter or evidence which, after the
exercise of due diligence, was not within knowledge of the petitioner or could not be
produced by him;
(ii) Mistake or error apparent on the face of the record;
(iii) Any other sufficient reason.
Smt. Vinita Bhatnagar v. Union of India and others, 2018 (36) LCD 1065
Constitution of India:
Arts. 21 and 226 – Medical care – Entitlement of Medical reimbursement
In Court’s view, any person who is entitled to medical reimbursement from
State Exchequer must be asked compulsorily to avail medical services maintained by
State failing which, no medical reimbursement should be allowed. This is one way
whereby medical services run by the State may undergo improvement due to
continuous monitoring. If highly placed officials, resourceful persons and other
dignitaries, whenever needed, go for treatment to Hospitals and Medical Services
maintained by State, functional conditions of these institutions, in our view, may go
under a sea change towards improvement but if these services are left for have nots,
such lot having no say in governance, may not be able to get any desired improvement
in such services and the mere fact that such people have power to punish inactive
persons over five years is nothing but something making mockery of helplessness of
these people. Snehlata Singh @ Salenta and others V. State of U.P. and others, 2018
(3) AWC 2610 (DB)
Art. 26- Examination N.E.E.T. PG - revaluation of answer-sheet –Prayer for direction for
–No Provision permitting revaluation of answer sheet could be shown –In absent of
provision of reevaluation direction to that effect could not be accorded
This writ petition is thoroughly misconceived and against the law of land.
Petitioner has sought a writ of mandamus commanding respondent-2 to revaulate his
answer sheet for the Examination NEET PG-2018. Despite repeated query, learned
counsel for petitioner could not show any provision under which such revaluation is
permissible.
Apex Court has repeatedly held that no request for revaluation can be
accepted unless there is a provision in this regard. In Maharashtra S.B.O.S. And H.S.
Education Vs. Paritosh AIR 1984 SC 1543 Court has clearly taken the view that in
absence of provision of revaluation, direction to that effect cannot be accorded. Said
view has been reiterated again in Pramod Kuamr Srivastava Vs. Chairman B.P.S.C.
Patna AIR 2004 SC 4116. Sudarshan Yadav v. Union of India and another, 2018 (3) AWC
2672 (DB)
Art. 30(1) – Minority unaided private institution – Admission to course of
higher/professional/technical education – Single window mechanism for admission is
mandatory
Single window mechanism for admission to course of
higher/professional/technical education is mandatory and there is no escape from it
even for minority institutions. Such single window mechanism by State is not only
permissible but desirable. It is to be preferred vis-a-vis such mechanism by private
institutions or their association. Eram Girls Degree College v. State of U.P., 2018 (3) ALJ
417(FB)
Criminal Procedure Code:
Sec. 154 – Penal Code Ss. 300, 302 – FIR – Whether ante timed – informant lodging FIR
at police station where incident has occurred, after death of deceased – Preparation of
panchnama before lodging of FIR, therefore, does not in any way reflect on ante
timing of FIR
Court was found that the F.I.R. cannot be treated to be ante-timed merely on
account of the panchayatnama having been prepared earlier and the F.I.R. having
been lodged later on. We have noted above that after the deceased was assaulted, he
was first taken to the Community Health Centre at Mauranipur and from where he
was referred to the Jhansi Medical College. The Jhansi Medical College had further
referred him to K.G.M.C., Lucknow, but before he could reach the Institute, he died
mid way. The body of the deceased was brought back to Jhansi Medical College and
was kept in the mortuary of the aforesaid Medical College. The concerned ward boy of
the Medical College informed the local police and the Sub Inspector of Police of Police
Post Jhansi University arrived. He thereafter got the panchayatnama of the body of the
deceased prepared in the Medical College itself. It is this reason which has clearly been
established by the prosecution which led to the lodging of the F.I.R. at police station
Mauranipur, where the incident had occurred after the deceased had died. The
preparation of the panchayatnama, therefore, does not in any way reflect on the ante-
timing of the F.I.R. Hari Dayal v. State of U.P., 2018 (3) ALJ 337 (DB)
Evidence Act:
Oral evidence—Admissibility of
Oral evidence is also a piece of evidence and merely because no documentary
evidence could be produced in support of the earnings of the deceased, oral evidence
cannot be rejected unless it is found unreliable. Oral evidence of widow was in
conformity with law and trustworthy and did not suffer from inconsistency,
contradiction, exaggeration or embellishment. Accident occurred in 2012 and earnings
of Rs. 200 per day from saloon business is not an absurd or exaggerated figure,
whether oral evidence in admissible. National Insurance Co. Ltd. V. Sujata Manna,
2018 ACJ 880 (Cal.) (DB)
Excise Act:
Cancellation of licence –For charge of not distributing scheduled commodities in
accordance with law –If on considering explanation of licensee licensing authority finds
that indeed grave irregularities had been committed and licensee had not been able to
explain them away cancellation order could be passed
It is the case of the petitioner that one sitting M.L.A. of Bhartiya Janta Party
arrayed as respondent No. 4 in this writ petition and representing the Constituency of
Vidhan Sabha, Gunnaur, district Sambhal had written to the Chief Minister of the State
that he had found in his local inspection of his Constituency that several fair price shop
licensees of various villages were not distributing the Scheduled Commodities in
accordance with law, and therefore, a request was made by the said M.L.A. that a
proceeding be initiated against such fair price shop licensees and their fair price shop
licence be cancelled.
In this case, the procedure as is required under the Government Order dated
29.07.2004 was followed to the letter. The explanation of the petitioner was
considered properly by the Licensing Authority.
Learned counsel for the petitioner has lastly argued that suspension order was not
passed in this case, and therefore, cancellation order could not have been passed
straightaway.
Such an argument has only been noted to be rejected as misconceived. The
Licensing Authority is not duty bound to pass a suspension order in every case. It is
only when on preliminary inquiry it is found that the charges are of such a grave
nature as to warrant cancellation of Licence Agreement that a suspension order is
passed. However, the preliminary inquiry is only a preliminary inquiry and it cannot in
any way fetter the discretion of the Executive Authority to be exercised after all
materials are placed before him in detailed inquiry held thereafter. If in the detailed
inquiry held thereafter on considering the explanation of the licensee the Licensing
Authority finds that indeed grave irregularities have been committed and the licensee
has not been able to explain them away by his explanation, looking into his past
conduct, a cancellation order can be passed. Bhure Singh v. State of U.P. and others
2018 (2) AWC 1385
Hindu Adoptions and Maintenance Act:
Sec. 16(2) –Compassionate appointment- Denial of –Adoption of petitioner/appellant
by father of his mother during his life time through registered deed of adoption had
not been established- Validity of
It is the case of the petitioner-appellant that Punni Lal before his death adopted
the petitioner-appellant which has been evidenced by means of a notary affidavit
dated 28.5.2004. Punni Lal died on 14.6.2005. According to the petitioner-appellant,
upon the death of Punni Lal the name of Urmila Devi the mother of the petitioner-
appellant was mutated in the revenue records, pertaining to the holdings of the
deceased Punni Lal, in the khatauni of 1412 to 1417 firstly. It is further alleged that the
mother of the petitioner-appellant was also nominated for the payment of the G.P.F.
amount of the deceased Punni Lal. Thereafter, the Administrator General U.P. granted
the Letters of Administration dated 6.4.2009 in favour of the petitioner-appellant
regarding the estate of the deceased Punni Lal.
On the basis of the aforesaid facts, the petitioner-appellant staked his claim for
compassionate appointment as Punni Lal died during the course of employment and
the petitioner-appellant was eligible for such appointment on the grounds noted
above.
Thus, the failure on the part of the petitioner-appellant to bring on record the
document evidencing the averments made in paragraph 6 of the writ petition, do not
call for any examination by the court. Therefore, the Court has no hesitation in holding
that the adoption of the petitioner-appellant by Punni Lal during his life time through a
registered deed of adoption as required under Section 16 sub-section 2 of The Hindu
Adoption and Maintenance Act, 1956, as applicable to the State of U.P. has not been
established before the Court.
the learned Single Judge has not committed any error much less a legal error in
dismissing the writ petition filed by the petitioner-appellant. The appellant has failed
to prove his entitlement of compassionate appointment by establishing that he is a
dependant of the family of Punni Lal in terms of the 1974 Rules.
Consequently, the present special appeal fails and is, accordingly, dismissed.
However, in the facts and circumstances of the case, Court do not make any order as
to costs. Shiv Kumar v. State of U.P. and another, 2018 (3) AWC 2335
Hindu Marriage Act:
Sec. 13- Divorce petition- Conduction of D.N.A. test of child born out of wedlock of
parties –Consideration of
However, as to the stage of conducting DNA test and the consideration which
are required to be taken into account before forming such option, the observations
made by the Apex court in the case of Bhabani Prasad Jena v. Convenor Secretary,
Orissa State Commissioner for Women and another reported in 2010 (8) Supreme
Court Cases 633 are relevant to be taken note of. In that case, the Apex Court had held
that DNA test in a matter relating to paternity of a child should not be directed by the
Court as a matter of course or routine manner. Wherever such request is made, the
Court has to be consider diverse aspects including presumption under Section 12 of
the Evidence Act; pros and cons of such order and the test of "eminent need" whether
it is not possible for the court to reach the truth without use of such test. Any order or
direction for DNA test can be given by the Court only when a strong prima facie case is
made out for such a course.
Even in Dipanwita Roy (supra), the Apex Court in paragraph 10 while
considering Bhabani Prasad Jena (supra) had observed as under:-
"10. It is borne from the decisions rendered by this Court in Bhabani Prasad
Jena (supra), and Nandlal Wasudeo Badwaik (supra), that depending on the facts and
circumstances of the case, it would be permissible for a Court to direct the holding of a
DNA examination, to determine the veracity of the allegation(s), which constitute one
of the grounds, on which the concerned party would either succeed or lose. There can
be no dispute, that if the direction to hold such a test can be avoided, it should be so
avoided. The reason, as already recorded in various judgments by this Court, is that
the legitimacy of a child should not be put to peril."
In the light of the legal position relating to DNA test and the allegations
levelled by the parties, the welfare of the child, this court is of the considered opinion
that the stage for conducting DNA test had not reached in the instant case.
The Principal Judge, Family Court, Azamgarh had erred in directing for DNA
test of the child without applying its mind on the evidence led by the parties in respect
of their rival assertions. Such a course adopted cannot be permitted to sustain.
For the above noted reasons, the order dated 11.7.2017 passed by the
Additional District and Sessions Judge/FTC, Court No. 2, Azamgarh passed on the
application 17Ga-2 filed by the husband (petitioner therein) in Matrimonial Petition
No. 50 of 2008 (Pramod Kumar Singh vs. Smt. Renu Singh) is unsustainable and is
hereby set aside.
The present petition is allowed.
The Principal Judge, Family Court, Azamgarh is directed to proceed with the
divorce petition and decide the same preferably within a period of six months from
the date of submission of certified copy of this order. Renu Singh @ Reenu Singh V.
Pramod Kumar Singh , 2018 (2) AWC 1210
Sec. 13 - Divorce – Suit for - Dismissal of – On ground of appellant having failed to
establish that respondent wife was suffering with mental illness or any other ground
for divorce –Effect of All mental abnormalities were not recognized as grounds for
grant of decree of divorce – Merely branding a spouse as a schizophrenic is not
sufficient
Raj Kumar Pal-appellant has preferred the instant First Appeal, under Section-
19 of the Family Courts Act, against the judgment and order dated 25.05.2017 passed
by learned Additional District Judge/ Family Judge (Fast Track Court-2), Sultanpur in
Regular Suit/ Case No.191 of 2012 (Raj Kumar Pal Vs. Smt. Urmila), whereby suit for
divorce filed by the appellant under Section 13 of the Hindu Marriage Act has been
dismissed on the ground that the appellant (husband) has failed to establish that Smt.
Urmila-respondent ( wife) is suffering with with mental illness or any other ground for
divorce. Merely branding a spouse as a schizophrenic is not sufficient. The degree of
mental disorder of the spouse must be proved to be such that other spouse cannot
reasonably be expected to live with him or her. In other words, it must be such that
the petitioning spouse cannot reasonably be expected to live with the other. All
mental abnormalities are not recognised as grounds for grant of decree. Raj Kumar Pal
v. State of U.P. and another, 2018 (3) AWC 2699
Sec. 13 (1)(i)(a) – Divorce – 'cruelty' by wife – wife joined service or that wife is
working – cannot be treated as cruelty or ground for divorce
The statement of witnesses recorded before the learned Judge, family court
reveals that the husband has relied upon the following grounds for decree of divorce:
(I) That the wife is of the view to do service and after some times, she joined the
service and presently she is in employment against the wishes of the husband or his
family members.
Learned counsel for the appellant has submitted that this can be never a
ground for divorce and the facts that the wife is working cannot be treated to be the
ground for cruelty. He has further submitted that the husband has deserted the wife
and was not ready to keep her with him and thus she compelled to resides with her
parents and to maintain her livelihood with her child at the parental home, she was
compelled by the circumstances to join the service according to her status and
education.
In light of the above facts, the ground as the wife joined the service, in our
view, cannot be made the ground for treating it as cruelty or ground for divorce. Smt.
Gurpreet Kaur V. Rajeev Singh, 2018 (3) ALJ 227
Interpretation of Statutes:
Fiscal Statute- Mode of interpretation - In construing a fiscal statute, one must have
regard to the strict letter of law and not to the spirit of statute or the substance of law
In construing a fiscal statute, one must have regard to the strict letter of the
law and not to the spirit of the statute or the substance of law. If the revenue satisfies
the Court, the case falls strictly within the strict language of the charging provision, the
subject will be taxed; if on the other hand the case is not so covered, no tax can be
imposed on inference or trying to probe into the intention of the legislature. Kotak
Mahendra Bank Ltd. V. State of U.P. and others, 2018 (36) LCD 928
Land Acquisition Act:
Ss. 23, 24, 55 – U.P. Land Acquisition (Determination of compensation and Declaration
of Award by Agreement) Rules 1997 – Rr. 3, 4 – payment of compensation at different
rates – On basis of classification of farmers in two categories viz. Pushtaini and gair
pushtaini – Is reasonable
Classification introduced amongst pushtaini and gair pushtaini farmers is
reasonable with intelligible differential and in no manner causes any discrimination
among similarly situated person. Resolution impugned provides only additional
compensation to the pushtaini farmers due to loss of home, property, their earnings as
a consequence of their land. These farmers were involved in agricultural activities,
may those be of different nature quite prior to Notification dated 28.01.1991. Their
sole earnings were dependent on the land that came to be acquired whereas persons
termed as gair pushtaini farmers purchased land after coming into force the
Notification pertaining to the industrial and urban development of the area
concerned. As a matter of fact, the pushtaini farmers lost their livelihood whereas gair
pushtaini farmers invested to have better livelihood. As such, additional compensation
is nothing but reasonable expense incurred in incidental charge of residence or place
of business due to land acquisition. This additional compensatory amount cannot be
placed at same pedestal with the compensation awarded to all the land holders.
Object of this additional compensation is reasonable rehabilitation of original
residents, who were uprooted from their ancestral place of residence and occupation.
They are not persons who occupied the land with any intent of profit earning or to be
part of development projects. It is pertinent to notice that gair pushtaini farmers are
not deprived of market value of their land. Cutoff date is nothing but date on which
Notification was issued for creation of development project in an area of 38,000
hectare. Subsequent to that day, the petitioners were aware of the future prospects of
the area and that would have been reason for investment in real estate. Pushtaini
farmers are real toiling farmers whereas the petitioners are investors. The investors
and toiling farmers certainly constitute two different group of land owners, hence
classification among them is quite reasonable. Ramesh Chandra Sharma v. State of
U.P., 2018 (3) ALJ 462 (3 Judges Bench)
Sec. 48 (1) – Scope - Withdrawal from Acquisition –Permissibility- Held, once
possession of the land had been taken the State Government would not have power to
withdraw from the acquisition under Section 48(1) of the Act, 1854
The notification under Section 4(1) of the Act was issued on 7 April, 2006 and
the declaration was made on 19 February 2007 under Section 6 of the Act. The award
that was made on 9 August 2011 mentions that the possession of the land was taken
on 19 December 2007. It is stated by the learned counsel for the petitioner that the
petitioner did not challenge the notification issued under Section 4(1) of the Act or the
declaration made under Section 6 of the Act and that the petitioner had filed a
representation before the Chief Executive officer for exemption of the land from
acquisition. This representation filed by the petitioner has been rejected by a detailed
order passed by the Chief Executive officer of Noida. A finding of fact has been
recorded that possession of the land was taken and even otherwise the land of the
petitioner was centrally situated within the scheme and could not be exempted. In this
view of the matter, once possession of the land had been taken, the State Government
would not have the power to withdraw from the acquisition under Section 48(1) of the
Act.
In this view of the matter, the relief claimed that the State Government should
decide the representation filed by the petitioner under Section 48 (1) of the Act
cannot be granted. Brahma Singh v. State of U.P. and others, 2018(36) LCD 1077.
Legal Services Authorities Act:
Ss. 19 (5) and 21 (2) – Compensation – Award passed by Lok Adalat- Award obtained
by fraud held to be no award in eyes of law - Department had right to apply to court
for review of order so as to be examined by court –Impugned order being wholly
illegal and arbitrary quashed- Matter remitted to court below to enquire into matter
and pass appropriate orders
When the application has been filed by the petitioner alleging that award itself
has been obtained by fraud collusion of the officers of the petitioner's Corporation
with the party, who appeared before the Court claiming to be the claimant such
application could not have been rejected by the court below on the ground that the
award has been passed in proceedings of the Lok Adalat and that it was obtained by
the consent of the parties and that the amount had already been paid to the claimant.
Allegation of fraud is a very serious allegation and when such fraud was played upon
the court, it was the duty of the court to have addressed itself with alacrity and proper
application of mind. Award which has been obtained by fraud is no award in the eye
of law and the court below has held that the proceedings under sub section 2 of
section 21 of the Act, 1987 had become final between the parties. The Question is who
was the claimant and if department through its internal enquiry comes to the
conclusion that fraud had been played upon it through the collusion of its own officers
with the person claiming to be the claimant then the department has the right to apply
to the court for review of the order and there is a duty cast upon the court to examine
the matter.
In this view of the matter, the order dated 01.05.2003 is wholly illegal and
arbitrary and is accordingly quashed.
The writ petition is allowed.
The matter is remitted to the court below who shall enquire into the matter
and pass appropriate orders in accordance with law. U.P State Road Transport
Corporation, Meerut v. State of U.P. and others, 2018 (3) AWC 2457
Motor Vehicles Act:
Ss. 2(10) &4(1) —Driving licence—If a person obtains driving licence by furnishing
wrong information when he had not attained the minimum age prescribed by the
statute whether licence even though not being fake or forged can be termed as a valid
and effective driving licence—Held:no
Tribunal lost sight of the fact that issuance of fake or forged licence is
altogether different issue. Licence issued to the driver of the offending vehicle may not
be fake or forged but whether the same could have been issued to the holder in view
of his disqualification on the ground of having not attained the minimum age
prescribed by the statute and such alicence whether can be termed as effective and
valid licence was the issue required to be addressed by the Tribunal. Fruther if the
licence is obtained by furnishing wrong and incorrect information, the same may not
be fake but having been obtained on the basis of wrong or incorrect information
deliberately furnished, would fall in the category of licence obtained fraudulently. Such
a licence cannot fall in the category of valid and effective driving licence. Mere fact
that an employee if issuing authority appears and proves the same, only goes to
establish it was issued by the authority and was not fake or forged. However, such
evidence is not sufficient to establish it as valid and effective once the competence of
the holder is challenged. The Tribunal has to advert to other evidence on record led by
the party asserting the fact to come to a finding. In case, the evidence leads to a
conclusion that on account of any bar prescribed by the statute, the holder was
disqualified, the licence even though not being fake or forged cannot be termed to be
a valid and effective driving licence. The other consequence is a licence having been
obtained on the basis of deliberate false and incorrect information would fall within
the category of licence obtained fraudulently automatically taking it out of the
category of valid and effective driving licence. New India Assurance Co. Ltd. V. Sundari,
2018 ACJ 924
Sec. 2(30) –Compensation –For death in vehicular accident- Without showing
respondent to be registered owner of vehicle claimants were not entitled to claim
compensation from him- Respondent could not be held liable to pay compensation in
absence of proof of his being owner of vehicle involved in accident
It is evident from the award that registration number of the tractor trolley was
not mentioned by the appellant claimant. Registered owner of the tractor trolley was
not proved by the appellant/claimants. There is contradictory evidence in regard to
the fact whether Ramhet was driving the tractor trolley. Under the circumstances, the
tribunal has reached the conclusion to the effect that Vishwapal Bharti died in an
accident, however, there is no evidence to prove that Ramhet was owner of the
tractor or was driving the tractor. It has further been indicated that Ramhet has been
falsely implicated because of previous enmity.
It would not be out of place to refer to the exact definition of Section 2(30) of
the Motor Vehicles Act 1988. Section 2(30) Motor Vehicles Act 1988 reads as under:-
"Section 2(30) in The Motor Vehicles Act, 1988 (30) “owner” means a person
in whose name a motor vehicle stands registered, and where such person is a minor,
the guardian of such minor, and in relation to a motor vehicle which is the subject of a
hire-purchase, agreement*, or an agreement of lease or an agreement of
hypothecation, the person in possession of the vehicle under that agreement;"purpose
of introducing Section 2(30) in the Motor Vehicles Act is that victim of a motor
accident or, in the case of a death, the legal heirs of the deceased victim should not be
left in a state of uncertainty. The person in whose name a Motor Vehicle is registered
is to be considered as 'owner' of the vehicle.
Inverse of this would also be true. The ownership of the vehicle in terms of
Section 2(30) of the Motor Vehicles Act involved in an accident is required to be
proved by the claimant(s).
Without showing that Ramhet was registered owner of the vehicle, within the
meaning of Section 2(30) of the Motor Vehicles Act, the claimants are not entitled to
claim compensation from Ramhet.
Ramhet cannot be held liable to pay compensation without the claimants
proving that Ramhet was "owner" of the tractor which was involved in the accident.
In the case in hand, neither the registration number of the vehicle has been
proved nor ownership of the said vehicle of Ramhet S/o Nandram has been proved.
The evidence showing Ramhet as the driver is not worthy of belief.
In view of the above, we have no hesitation in holding that the impugned
award has been passed on the basis of relevant evidences and in accordance with the
law. Ramesh Chandra and another v. Ramhet, 2018 (3) AWC 2326 (DB)(LB)
Sec. 147 – Liability of insurer – Ground, driver of truck possessing fake licence –
Renewal of fake licence thereafter cannot cure inherent fatality – Insurer not liable to
pay compensation
It is evident that the original license was fake and renewal of fake license
cannot cure the inherent fatality and therefore , the finding of the Tribunal that the
license has been revalidated and it cannot be said to be invalid is not sustainable.
We find from the record that the license of Kesari Prasad was issued on
26.06.1965. Chaturbhuj Gupta DW-1 had categorically stated on the basis of original
record that no license was issued on 26.06.1965 , and the testimony of Chaturbhuj
Gupta DW-1 was not rebutted by any evidence. Thus, we are of considered opinion
that since the original driving license was fake, and its revalidation cannot cure
inherent fatality in view of the judgment of the Apex Court in the case of United India
Insurance Company Ltd. (Supra). Accordingly, we hold that the driving license of the
driver of the truck was not valid, and the owner of the truck has committed breach of
policy; and therefore, the insurance company is not liable to pay compensation.
Further, we may observe that the claimant, being third party, should not
suffer, and therefore, in view of the judgment of Swaran Singh (Supra), the Insurance
Company shall deposit the awarded amount, and thereafter it can recover from the
owner. New Indian Assurance Co. Ltd. v. G.P. Agrawal, 2018 (3) ALJ 483(DB)
Sec. 166 –Compensation – For death in vehicular accident- Since, accident took place
during use of motor vehicle and injured died claimants were held entitled for award of
compensation
This First Appeal From Order has been preferred under Section 173 of the
Motor Vehicles Act against the judgment and order dated 28.02.2015 passed by Motor
Accident Claims Tribunal/Special Judge (E.C.) Act, Lucknow, in Motor Accident Claim
Petition No.138 of 2010- Saurav Gupta and another v. Smt. Hasrati and another,
whereby the claim petition filed by the claimants was dismissed by the learned
Tribunal shifting 100% responsibility of the deceased in a case of accident.
Aggrieved by the order of the learned Tribunal, this appeal has been filed with the
contention that the learned Tribunal has erred in deciding the case shifting 100%
liability on the deceased.
After perusal of the evidence on record and the statement of the witness, we
are of the view that there was no contribution on the part of the deceased in
commission of the incident. The doctrine of contributory negligence cannot be
fastened on the deceased after her death because she is not here to depose anything
or to defend herself. Once it is proved that after the investigation charge sheet was
filed and the driver of the offending vehicle had violated the rules and safety norms as
laid down in the Motor Vehicles Act, the offending vehicle is fully responsible for the
occurrence of the incident and since the accident took place during the use of the
motor vehicle and the injured died, the claimants are entitled for the award of
compensation.
In light of Pranay Sethi's case, mentioned above, while determining the
income an addition of 50% of the actual salary of the income of the deceased towards
future prospects where the deceased had a permanent job and was below the age of
40 years should be made. If court calculate the future prospects, it comes to
Rs.89914/-. Accordingly, we calculate the amount of compensation admissible to be
paid to the claimants.
Accordingly, the appeal and the claim petition are allowed. The claimants are
entitled for payment of Rs. 31,27,093 with interest at the rate of 6% per annum from
the date of filing of the claim petition till actual payment is made. The amount of
compensation will be equally divided between the claimants. 60% amount of the claim
shall be kept in the form of term deposit in a Nationalized Bank and the rest amount
shall be paid to the claimants. Saurabh Gupta V. Smt. Hasrati, 2018 (2) AWC 1705 (LB)
Compensation –For death in vehicular accident- Amount received by appellant No. 1
towards family pension was not liable for deduction for determination of
compensation-Determination of
In the case of Vimal Kanwar & Others vs. Kishore Dan & Others, 2013 (3) TAC 6
(SC), Hon'ble Apex Court has held that "Family pension or compassionate appointment
cannot be termed as pecuniary advantage that comes under the periphery of Motor
Vehicles Act."
In view of the law laid down by Hon'ble Apex Court we hold that family
pension is a pecuniary advantage receivable by the claimant appellant Smt. Javitri Devi
(wife of the deceased) on account of death of deceased family pension has no
correlation with the amount receivable under a statute occasioned only on account of
accidental death such an amount will not come within the periphery of the Motor
Vehicles Act to be termed as pecuniary advantage liable for deduction. We further
hold that the salary receivable by the claimant / appellant Kulmayank Singh (son of the
deceased) on compassionate appointment cannot be termed as pecuniary advantage
that comes under the periphery of Motor Vehicles Act and any amount received on
such appointment is not liable for deduction for determination of compensation under
the Motor Vehicles Act. New India Assurance Co. Ltd. V. Javitri Devi and others, 2018
(3) AWC 2282
Quantum—Fatal accident—Principles of assessment—Age—Determination of—Post-
mortem report—Whether Tribunal was justified in accepting the age of the deceased
at 29 on the basis of post-mortem report—Held: yes.
Taking note of the entry in the post-mortem certificate, Exh. P2, the Claims
Tribunal has determined the age of the deceased as 29 years, which cannot be said to
be erroneous, in view of the judgments in Fakeerappa v. Karnataka Cement Pipe
Factory, 2004 ACJ 699 (SC) and Managing Director, Tamil Nadu State Trans. Corpn. v.
Mary, 2005 (5) CTC 515.
It is a well recognized rule if interpretation of statutes that the expressions
used in the statute should ordinarily be understood in which they harmonise with the
object of the statute and which effectuate the object of the legislation and the court
should adopt an object-oriented approach. Keeping in mind the language employed in
the statute. Branch Manager, ICICI Lombard General Ins. Co. Ltd. V. Kaliyamoorthy,
2018 ACJ 1352 (Madras) (DB)
Sec. 166 – Notional income – Assessment of – Accident took place on 27.2.2010 –
Therefore income of relevant F.Y. 2009-2010 required to be considered
Now the question is what should be the method for calculation of annual
income. The salary for ten days on the basis of rupees eight lakhs per annum has been
challenged by the Insurance Company on the ground that when the accident had
taken place on 27.02.2010 at 04.30 AM, it cannot be calculated for the day i.e.
27.02.2010 and the calculation is either wrong or it has been obtained only to file the
claim petition for enhancement of the award. On the basis of above, the assessment
year 2010-2011 which is financial year 2009-2010 should be taken into account for the
reasons that the accident took place on 27.02.2010 and for that relevant financial
year, the income of the deceased was shown in the income tax return as Rs.1,79,829/-
.Saurabh Gupta v. Hasrati, 2018 (3) ALJ 610 (DB)
Sec. 168 – Compensation – Determination – Selection of multiplier – Deceased aged
about 10 years, multipliers of 15 applicable
So far as the submission of the counsel for the appellant regarding the
multiplier, we find that the Tribunal on mere presumption has applied the multiplier of
10. As per the settled law the multiplier provided in the case of 2009 (6) SCC 121 (Sarla
Verma and others Vs. Delhi Transport Corporation and others), should be applied.
Accordingly, we provide that the compensation should be computed by applying
multiplier of 15 instead of 10 as has been done by the Tribunal. Jithendra Kumar Jain
v. Ashok Kumar Jain, 2018 (3) ALJ 369
Provincial Small Cause Courts Act:
Sec. 23- Code of Civil Procedure, O. 7, R. 10 –Summoning of handwriting expert-
Rejection of application for
This petition has been filed praying for the following reliefs :
"(i) issue an order or direction for setting aside the orders dated 19.7.2017
as well as order dated 3.8.2017 passed by the courts below contained in Annexure
Nos.-7 and 9 to the petition and to allow the application dated 19.7.2017 filed by the
petitioner for summoning the expert of thumb impression as a defendant witness to
prove the report submitted by him before the Court below.
(ii) issue any other and appropriate order or direction, as this Hon'ble Court
may deem fit and proper in the circumstances of the case.
(iii) award cost of petition to the petitioner."
By the impugned order dated 19.7.2017, the application 131-C filed by the
petitioner-defendant for summoning the hand wiring expert Sri Vishan Kumar Sharma,
was rejected on the ground that the hand-writing expert report being Paper No.112-C
was presented in some other matter.
By the impugned order dated 3.8.2017, the Civil Revision No. Nil of 2017 filed
by the petitioner-defendant to challenge the aforesaid order dated 19.7.2017, was
dismissed.
The findings so recorded by the trial court as well as by the revisional court do
not appear to be correct in view of the law laid down by this Court in the case of
Jagannath Dalwala v. Bhola Nath and others, AIR 1963 Allahabad 258. Prem Shanker v.
District Judge, Bareilly and others, 2018 (2) AWC 1786
S. 23-Civil Procedure Code, 1908. S. 10-Application for stay of suit-SCC suit returned
under S. 23 of the Act stating since title of Property is in dispute and a regular suit is
pending, he cannot decide the SCC suit for arrears of rent and eviction of tenant-
Justification of- The Court below has tried to shirk its responsibility of deciding the SCC
suit and has not exercised due diligence to even ascertain as to how the tenant is
continuing on the basis of the renewal of the lease deed by a person who is apparently
unauthorized to renew such lease deed-Even if the said sale-deed is eventually set
aside by the competent Court the Revisionist would still be co-owners of the property
in dispute and thus entitle to pursue a suit for eviction of a tenant-Return of plaint
improper, matter remitted to Court below to consider afresh from the stage was the
application filed.
From a perusal of the impugned judgment and order dated 07.03.2018, this
Court finds that the learned Court below has tried to shirk its responsibility of deciding
the SCC Suit and has not exercised due diligence to even ascertain as to how the
tenant is continuing on the basis of the renewal of the Lease Deed by a person who is
apparently unauthorized to renew such Lease Deed. The tenant is also allegedly paying
rent to a person who does not have any document to show his title as landlord in
preference to persons who have registered Sale Deed in their favour. Even if the said
Sale Deed is eventually set aside by the Competent Court the Revisionists would still
be co-owners of the property in dispute and thus entitled to pursue a suit for eviction
of a tenant.
The impugned judgment and order is set aside. The matter is remitted to the
learned Court below to consider afresh from the stage the Application for stay of
proceedings was filed by the Respondent No. 1 before it.
The Revision is allowed. Triyugi Narian Gupta and Another V. Ramesh Chandra
Jaiswal and 2 and Others, 2018(2) ARC 130.
Public Premises (Eviction of Unauthorized Occupants) Act:
Scope of notice under Section 5A (2) of Act - Only to seek demolition of unauthorized
construction and not to seek eviction of occupant- Scope of proceedings could not be
extended to examine whether notice had authority to occupy “public premises in
question”
The scope of the provisions under Section 5A(2) of the Act was therefore, very
limited i.e. to establish whether the noticee had the authority to raise constructions.
The scope of the proceedings is not and it could not be extended to examine whether
the noticee had authority to occupy "public premises in question".
At present no proceedings have been initiated against the petitioner, under
Section 5 of the P.P. Act, requiring her to show cause if she had the authority to
occupy the "public premises in question". She could not have been visited with the
order of demolition on the reasoning that she did not have authority to occupy the
premise. To allow the respondents to do so would be to allow valuable rights of the
citizen to be destroyed by drawing up proceedings under one provision for limited
object and to achieve a different and wider object of eviction either directly or
colourably. That cannot be done.
The impugned order dated 05.02.2014 is set aside. The matter is now remitted
to the Estate Officer to decide the matter afresh after affording complete opportunity
of hearing to the petitioner. In this regard, the Estate Officer shall first issue a fresh
notice of the date of hearing in the matter so remanded. It shall be accompanied with
complete copies of all inspection reports and other material that are to be relied
against the petitioner. The petitioner shall be given time of at least three weeks to
furnish her written reply/objection to the evidence/material to be relied against her.
Smt. Manju Arora v. Estate officer, Meerut Cantonment and another, 2018 (3) AWC
2582
Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and
Resettlement Act:
Sec. 24(2) – Land Acquisition Act Ss. 4(1), 11, 55 – U.P. Land Acquisition
(Determination of Compensation and Declaration of Award by Agreement) Rule s
(1997), Rr. 3, 4 – Acquisition of Land – Lapse of proceeding – choice of date as basis of
classification – Fixing of 1st January, 2014, as date from which period of 5 years should
be counted – Is not arbitrary or violation of Art. 14
Both under sub-S. (1) and sub-S. (2) of S. 24 of 2013 Act, cut-off date has been
taken as date of commencement of 2013 Act, namely 1 January, 2014. It was clearly
intention of legislature to make things clear about acquisitions made under repealed,
1894 Act on date when 2013 Act came into force. If award under S. 11 of 1894 Act had
not been made prior to 1 January, 2014, then provisions of 2013 Act would apply for
determination of compensation and if award had been made prior to 1 January, 2014
then all provisions of 1894 Act would apply to proceedings. However, acquisition
proceedings initiated under provisions of 1894 Act would lapse if award was made
under S. 11 of 1894 Act five years or more prior to 1 January, 2014 but compensation
was not paid or physical possession was not taken. 2013 Act, came into forces on 1
January , 2014. It cannot, therefore, be said that aforesaid date has been “picked out
from hat” by Legislature or that it is so capricious or whimsical and unrelated to object
sought to be achieved. Jila Singh V. Union of India, 2018 (3) ALJ 708
Securitization and Reconstruction of Financial Assets and Enforcement of Security
Interest Act:
Sec. 2(f) – Borrower – definition of – Is exhaustive – covers in its sweep 'guarantor'
also
Clause (f) of Section 2 defines "borrower" which means any person who has
been granted financial assistance by any bank or financial institution or who has given
any guarantee or created any mortgage or pledge as security for financial assistance
granted by any bank or financial institution and included a person who becomes
borrower of a securitisation company or reconstruction company consequent upon
acquisition by it of any rights or interest of any bank or financial institution in relation
to such financial assistance or who has raised funds through a debt securities. Thus,
the definition of ''borrower' is quite exhaustive which covers not only the "borrower"
but it also takes in its sweep the "guarantor" also. M/s. N.C.M.L. Industries Ltd. v.
Debts Recovery Tribunal, Lucknow, 2018 (3) ALJ 551
Service Law:
Central Civil Services (Pension) Rules, 1972- Rules 9 and 69- Payment of Gratuity Act,
1972 –Section 4(1) –Pension-Withholding of
In this case, court has observed that there was no provision …………. including
pension and gratuity sustained.
In view of above discussions, ultimate conclusion and inference drawn by
Tribunal that applicant respondent No. 1 are entitled for retiral benefits, including
pension and gratuity, has to be sustained. Though court has given different reasons to
some extent and, to that extent, reasons given by Tribunal would stand substituted,
but since reliefs sought by petitioners for setting aside judgment of Tribunal cannot be
granted, hence to that extent writ petitions stand dismissed. Bharat Sanchar Nigam
Ltd. V. Rameshwar Dayal 2018 (2) AWC 2154
Compassionate Appointment –Claim raised on the basis of rights acquired under
registered Will deed of the deceased employee- Entitlement- Held, not entitled as it is
only the family members i.e. sons, daughters and wife etc. who can be given
appointment under Dying-in-Harness Rules, 1974
Under Dying in-Harness Rules, it is only the family members i.e. sons,
daughters and wife etc. who can be appointed. Appointment cannot be governed on
the basis of a registered will deed of the deceased.
In view of aforesaid, respondent no. 5 has no right to claim for appointment
under Dying-in-Harness Rules.
Hence, the writ petition is allowed and the impugned orders dated 21-06-2014
and 10-10-2014 passed by the respondent no. 4, Executive Engineer, Nalkoop Khand,
Raebareli, as contained in Annexure Nos. 10 and 12 to the writ petition, are set aside.
Amit Srivastava v. State of U.P. and others, 2018 (36) LCD 1057
Compassionate appointment – To divorced daughter- Rules not providing for inclusion
of divorced daughter as dependent- Hence, court could not direct for treating them to
be dependant
By means of this writ petition, the petitioner who is divorced daughter is
claiming compassionate appointment. The petitioner's father was a government
employee and was holding the post of "Boat Chalak" as class IV employee in the
Revenue Department in Tehsil Bijnor. While in service unfortunately he died on
26.12.2013. It is to be noted that the petitioner was married much prior to the death
of the Raghuveer Singh, i.e., on 7.7.2000. After the death of Raghuveer Singh, the
petitioner and her husband Sandeep Kumar filed a suit for divorce under section 13-B
of the Hindu Marriage Act for divorce upon mutual consent and divorce was granted
on 13.2.2016 by the Principal Judge, Family Court, Bijnor (Annexure-4 to the writ
petition).
It is now submitted that a divorced daughter should be treated at par with
widowed daughter which is included in the definition of a dependents under
U.P.Recruitment of Dependents of Government Servants Dying-in-Harness Rules,1974
although in the rules married and divorced daughter are not included within the
definition of dependents.
It is to be noted that the divorce in the present case is on mutual consent. That
apart in various decisions of Hon'ble Supreme Court it has been held that as a rule,
appointments in the public services should be made strictly on the basis of open
invitation of application and merit. No other mode of appointment nor any other
consideration is permissible. Neither the governments nor the public authorities are at
liberty to follow any other procedure or relax the qualifications laid down by the rules
for the post. However, to this general rule which is to be followed strictly in every
case, there are some exceptions carved out in the interests of justice and to meet
certain contingencies. Therefore, any appointment on a public post to the exclusion of
all deserving and qualified candidates can be made strictly within the four corners of
the Rules.
Under the circumstances, considering the discussions above, if the Rules do
not provide for inclusion of divorced daughter as dependent, the Courts cannot direct
treating them to be dependent. Therefore, this Court in the Roobi Mansoori (Supra)
has rightly referred the matter to the Principal Secretary Law/ Legal Remembrancer,
U.P. Shashan,Lucknow (U.P.) for consultation with the governmental authorities to do
the needful. Unless there is any amendment in the rule, no direction can be issued for
appointment. Babita Thakur V. State of U.P., 2018 (2) AWC 1091
Promotional pay-scale – Admissibility of - Scheme of time bound pay scale was
admissible only to regular employees and not to ad hoc employees
It is the admitted case of the petitioners that initially the promotion of the
petitioners from Extension Teachers to Sub-Deputy Inspector of Schools was adhoc in
nature in 1988, and petitioners were regularised in 1995 only. The Scheme of Time
Scale Pay Scale was admissible only to regular employees and not to adhoc employees,
therefore, the petitioners could have been considered for grant of first Promotional
Pay Scale only after rendering eight years of service as Regular Sub-Deputy Inspector
of Schools/Assistant Basic Education Officer.
Since, the Scheme of first Promotional Pay Scale and one additional increment
thereon was introduced w.e.f. 01.03.1995 only, the petitioners have been rightly given
one additional increment in the Pay Scale of Assistant Basic Education Officer w.e.f.
01.03.1995 and the first Promotional Pay Scale on completion of five years of regular
continuous service thereafter w.e.f. 01.01.2000 and one additional increment
thereafter in the first Promotional Pay Scale by the impugned orders dated
20.10.2010.
The impugned orders dated 20.10.2010 although cancel the orders dated
9.5.1996 issued earlier wrongly giving Selection Grade and Promotional Pay Scale to
the petitioners, it does not order any recovery in consequence of this rectification of
administrative mistake and therefore, is liable to be affirmed
In view of the specific provisions of the Government Order dated 20.08.20004
as amended by the Government Order dated 11.08.2008, relied upon by the
petitioners themselves, although their services as Assistant Basic Education Officer
have to be counted along with their earlier service rendered as Sub-Deputy Inspector
of Schools for the purpose of time bound Pay Scale Scheme as continuous service,
such service would only qualify, if the same was rendered on a regular basis and not
on an adhoc basis. There is no illegality or infirmity in the orders impugned. Shyam
Sunder Tripathi v. State of U.P. and others, 2018 (2) AWC 1845
Stamp Act:
Sec. 2(10) –Conveyance- Definition- Held, ‘Conveyance’ denotes an instrument in
writing by which some little or interest is transferred from one person to other
The term ‘Conveyance’ denotes an instrument in writing by which some title
or interest is transferred from one person to other. It would appear from the
definition that actual transfer of property is an essential feature of “conveyance”. The
present case does not appear to be of that type. Emphasis may be laid on the words
“on sale” and “is transferred” used in the definition of the expression “Conveyance”,
These words are significant. They denote that the document itself should create or
vest a complete title in the subject matter of the transfer, in the vendee. Kotak
Mahendra Bank Ltd. V. State of U.P. and others, 2018 (36) LCD 928
Sec. 57 and Art. 62 (c) of Schedule 1-B- Reference –By Chief Controlling Revenue
Authority- answered by holding that document(s) under reference was an instrument
of assignment chargeable with stamp duty under Article 62 (c) of Schedule 1-B of
Stamp Act
This is a reference made by the Chief Controlling Revenue Authority under
Section 57 of the Indian Stamp Act, 1899. On the consent of the parties, the questions
referred were remoulded as follows:
"Whether the deed executed by the applicant with the underlying securities
taken for consideration would be chargeable with duty under Article 62(c) of Schedule
1-B of the Indian Stamp Act or not ? Or
Whether it would be covered under Article 23 (a) or (b) of the Schedule 1-B of
the Act?”
The instrument is either chargeable to duty or not. There is no equity or
estoppel as to tax (vide Commissioner of Income Tax, Madras Vs. V. Mr. P. Firm
Muar8) No liability of tax or fee can be imposed on alleged consent or acquiescence in
absence of statutory sanction for imposition of tax (vide District Magistrate, Haridwar
Vs. Harish Malhotra9). The law on the subject of stamp is all together, the matter of
positive juris which involves nothing by principle or by reason, but depends all
together on the language of the legislature.
For the reasons, herein above, we answer the question by holding that the
document(s) under reference is an instrument of assignment chargeable with stamp
duty under Article 62(c) of Schedule 1-B of the Stamp Act. Kotak Mahindra Bank Ltd. V.
State of U.P. and others, 2018 (3) AWC 2487 (3 Judges)
Statutory Provisions:
THE CRIMINAL LAW (AMENDMENT) ORDINANCE, 2018
NO. 2 OF 2018
Promulgated by the President in the Sixty-ninth Year of the Republic of India.
An Ordinance further to amend the Indian Penal Code, the Indian Evidence Act, 872, the Code of Criminal Procedure, 1973 and the Protection of Children from Sexual Offences Act, 2012.
WHERE As Parliament is not in session and the President is satisfied that circumstances exist which render it necessary for him to take immediate action;
NOW, THEREFORE, in exercise of the powers conferred by clause (1) of article 123 of the Constitution, the President is pleased to promulgate the following Ordinance:—
CHAPTER I PRELIMINARY
1. Short tide and Commencement.
(1) This Ordinance may he called the Criminal Law (Amendment)
Ordinance, 2018.
(2) It shall come into force at once.
CHAPTER II
AMENDMENTS TO
THE INDIAN
PENAL CODE 2. Amendment of section 166A.- In the Indian Penal Code (hereafter in this
Chapter referred to as the Penal Code), in section 166A, in clause (c), for the
words, figures and letters ―section 376B, section 376C, section 376D,‖, the words,
figures and letters ―section 376AB, section 376B, section 376C, section 376D,
section 376DA, section 376DB,‖ shall be substituted;
3. Amendment of section 228A. In section 228A of the Penal Code, in sub-section
(1),for the words, figures and letters ―section 376A, section 3768, section 376C,
section 376D‖, the words, figures and letters ―section 376A, section 376AB, section
37.6B, section 376C, section 3761), section 376DA, section 376DB‖ shall be
substituted.
4. Amendment of section 376.
In section 376 of the Penal Code,—
(a) in sub-section (1), for the words “shall not be less than seven years, but
which may extend to imprisonment for life, and shall also be liable to
fine”, the words “shall not be less than ten years, but which may extend to
imprisonment for life, and shall also be liable to fine” shall be substituted;
(b) in sub-section (2), clause (i) shall be omitted;
(c) after sub-section (2), the following sub-section shall be inserted,
namely:—
“(3) Whoever, commits rape on a woman under sixteen years of age shall
be punished with rigorous imprisonment for a term which shall not be less
than twenty years, but which may extend to imprisonment for life, which
shall mean imprisonment for the remainder of that person‟s natural life,
and shall also be liable to fine:
Provided that such fine shall be just and reasonable to meet the medical
expenses and rehabilitation of the victim:
Provided further that any fine imposed under this sub-section shall be paid
to the victim.”. 5. Insertion of new section 376AB.- After section 376A of the Penal Code, the
following. section shall be inserted , namely:-
Punishment for rape on woman under twelve years of age.
“376A13. Whoever, commits rape on a woman under twelve years of age
shall be punished with rigorous imprisonment for a term which shall not
be less than twenty years, but which may extend to imprisonment for life,
which shall mean imprisonment for the remainder of that person‟s natural
life, and with fine or with death:
Provided that such fine shall be just and reasonable to meet the medical
expenses and rehabilitation of the victim:
Provided further that any fine imposed under this section shall be paid to
the victim.”. 6. Insertion of new sections 376 DA and 376 DB.
After section 376D of the Penal Code, the following sections shall be
inserted , namely:— Punishment for gang rape on woman under sixteen years of age.
“376DA. Where a woman under sixteen years of age is raped by one or
more persons constituting a group or acting in furtherance of a common
intention, each of those persons shall be deemed to have committed the
offence of rape and shall be punished with imprisonment for life, which
shall mean imprisonment for the remainder of that person‟s natural life,
and with fine:
Provided that such fine shall be just and reasonable to meet the medical
expenses and rehabilitation of the victim:
Provided further that any fine imposed under this section shall be paid to
the victim.
Punishment for gang rape on woman under twelve years of age
376DS. Where a woman under twelve years of age is raped by one or
more persons constituting a group or acting in furtherance of a common
intention, each of those persons shall be deemed to have committed the
offence of rape and shall be punished with imprisonment for life which
shall mean imprisonment for the remainder of that person‟s natural life,
and with fine or with death:
Provided that such fine shall be just and reasonable to meet the medical
expenses and rehabilitation of the victim:
Provided further that any fine imposed under this section shall be paid to
the victim.”
CHAPTER III
AMENDMENTS TO
THE INDIAN
EVIDENCE ACT,
1872 7. Amendment to section 53.
In section 53A of the Indian Evidence Act, 1872 (hereafter in this Chapter
referred lo as the Evidence Act), for the words, figures and letters -section
376A, section 376B, section 3760, section 376D”, the words, figures and
letters “section 376A, section 376A13. section 376B, section 376C,
section 37617, section 376DA, section 376DB” shall be substituted.
8. Amendment to section 146.
In section 53A of the Indian Evidence Act, 1872 (hereafter in this Chapter
referred lo as the Evidence Act), for the words, figures and letters -section
376A, section 376B, section 3760, section 376D”, the words, figures and
letters “section 376A, section 376A13. section 376B, section 376C,
section 37617, section 376DA, section 376DB” shall be substituted.
CHAPTER IV
AMENDMENT TO
THE CODE OF
CRIMINAL
PROCEDURE 1973 9. Amendment of section 26.
In the code of criminal procedure 1973 (hereafter in this chapter referred
to as the Code of Criminal Procedure), in section 26, in clause (a), in the
proviso, for the word, figures and letter “section 376A, section 376B,
section 376C, section 376D” the words, figure and letter “section 376A,
section 376AB, section 376C, section 373D, section 376DA, section
376DA, section 376DB” shall be substituted. 10. Amendment of section 154.
In section 154 of the Code of Criminal Procedure in sub-section (1),-
(i) in the first proviso, for the words, figures and letter “section 376A,
section 376B, section 376C, section 376D,”, the words, figures and letters
“section 376A, section 376AB. section 37611, section 376C, section
376D, section 376DA, section 376DB,” shall be substituted;
(ii) in the second proviso, in clause (a), for the words, figures and letters
“section 376A, section 376B, section 376C, section 376D,”, the words.
figures and letters „section 376A, section 376AB. section 376B, section
376C, section 376D, fallen 376DA, section 376D13,” shall he substituted. 11. Amendment of section 161.
In section 161 of the Code of Criminal Procedure, in sub-section (3), in
the second proviso, for the words, figures and letters “section 376A,
section 376B, section 376C, section 376D,”, the words, figures and
Letters “section 376A, section 376AB, section 37613, section 376C,
section 376D, section 376DA, section 3 76DB,” shall be substituted 12. Amendment of section 164.
In section 164 or the Code of Criminal Procedure, in sub-section (5A), in
clause (a), for the words, figures and letters “section 376A, section 376B,
section 376C, section 376D,”, the words, figures and letters “section
376A, section 376AB, section 376B, section 376C, section 376D, section
376DA, section 376DB,” shall be substituted. 13. Amendment of section 173.
In section 173 of the Code of Criminal Procedure,—
(i) in sub-section (1A), for the words “rape of a child may be completed
within three months”, the words, figures and letters “an offence under
sections 376, 376A, 376AB, 376B, 376C, 376D, 376DA, 376DB or
section 376E of the Indian Penal Code shall be completed within two
months” shall be substituted;
(ii) in sub-section (2), in clause (i), in sub-clause (h), for the figures,
letters and word “376A, 376B, 376C, section 376D”, the figures and
letters “376A, 376AB, 376B, 376C, 376D, 376DA, 376DB” shall be
substituted, 14. Amendment of section 197.
In section 197 of the Code of Criminal Procedure, in sub.-section (1), in
the Explanation, for the words, figures and letters “section 376A, section
376C, section 376D”, the words, figures and letters “section 376A, section
376AB, section 376C, section 376D, section 376DA, section
376DB shall be substituted. 15. Amendment of section 309.
In section 309 of the Code of Criminal Procedure, in sub-section (1), in
the proviso, for the words, figures and letters “section 376A, section
376B, section 376C or section 376D of the Indian Penal Code, the inquiry
or trial shall, as far as possible”, the words, figures and letters “section
376A, section 376AB, Section 376B, section 376C, section 376D, section
376DA or section 376DB of the Indian Penal Code, the inquiry or trial
shall” shall be substituted. 16. Amendment of section 327.
In section 327 of the Code of Criminal Procedure, in sub-section (2), for
the words, figures and letters “section 376A, section 376B, section 376C,
section 376D‟, the words, figures and letters “section 376A, section
376AB, section 376B, section 376D, section 376DA, section 376DB, shall
be substituted. 17. Amendment of section 357 B. In section 357B of the Code of Criminal.
Procedure, for the words, figures and letters ―under section 326A or section 376E1
of the Indian Penal Code‖, the words, figures and letters ‗under section 326A,
section 376AB, section 3761 , section 376DA and section 376DB of the Indian Penal
Code‖ shall be substituted.
18. Amendment to section 357C- In section 357C of the Code of Criminal Procedure, for the figures and letters “376A, 376B, 376C, 376D”, the figures and letters “376A, 376AB, 376B, 376C, 376D, 376DA. 376DB” shall be substituted.
19. Amendment of section 374-In section 374 of the Code of Criminal Procedure, after sub-section (3), the following sub-section shall be inserted, namely:-
“(4) When an appeal has been filed against a sentence passed under section 376, section 376A, section 376AB, section 376B, section 3760, section 376D, section 376DA, section 376DB or section 376E of the ‘Indian Penal Code, the appeal shall be disposed of within a period of six months from the date of filing of such appeal.”.
20. Amendment of section 377-In section 377 of the Code of Criminal Procedure, after sub-section (2), the following sub-section shall be inserted, namely:-
“(3) When an appeal has been filed against a sentence passed under section 376, section 376A, section 376AB, section 376B, section 376C, section 376D, section 376DA, section 376DB or section 376E of the Indian Penal Code, the appeal shall be disposed of within a period of six months from the date of filing of such appeal.
21. Amendment of section 438.- In section 438 of the Code of Criminal Procedure, after sub-section (3), the following sub-section shall be inserted, namely:-
“(4) Nothing in this section shall apply to any case involving the arrest of any person on accusation of having committed an offence under sub-section (3) of section 376 or section 376AB or section 376DA and section 376DB of the Indian Penal Code.”.
22. Amendment of section 439.-In section 439 of the Code of Criminal Procedure,- (a) in sub-section (1). after the first proviso, the following proviso shall be inserted, namely:–
“Provided further that the High Court or the Court of Session shall, before granting bail to a person who is accused of an offence triable under sub-section (3) of section 376 or section 376AB or section 376DA or section 376DB of the Indian Penal Code, give notice of the application for bail to the Public Prosecutor within a period of fifteen days from the date of receipt of the notice of such application.”;
(b) after sub-section (1), the following sub-section shall be inserted, namely:—
“(1A) The presence of the informant or any person authorised by him shall be obligatory at the time of hearing of the application for bail to the person under sub-section (3) of section 376 or section 376A or section 376DA or section 376DB of the Indian Penal Code.”
23. In the First Schedule to the Code of Criminal Procedure, under the heading -I.-OFFENCES UNDER THE INDIAN PENAL CODE”,—
(a) against section 376,— (i) for the entry under column 3, the following entries shall be substituted, namely:—
1 2 3 4 5
“Rigorous imprisonment of not less than 10 years but which may extend to imprisonment for life and with fine”
(ii) the Following entries shall be inserted at the end, namely:-
1 2 3 4 5
“Persons committing offence of women under sixteen years of age
Rigorous imprisonment for a term which shall not be less than 20 years but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person’s natural life and with fine
Cognizable Non-bailable
Court of Session
(b) alter the entries relating to Section 376A, the following entries shall be interested, namely: –
1 2 3 4 5
“376AB “Persons committing offence of women under twelve years of age
Rigorous imprisonment of not less than 20 years but which may extend to imprisonment for life, which shall mean
Cognizable Non-bailable
Court of Session
imprisonment for the remainder of that person’s natural life and with fine or with death
(c) after the entries relating to section 376D, the following entries shall be inserted, namely:-
The Uttar Pradesh Municipalities (Amendment) Act, 2018
[U.P. Act 26 of 2018]
(As passed by the Uttar Pradesh Legislature)
An Act further to amend the Uttar Pradesh Municipalities Act, 1916
It is hereby enacted in the Sixty-ninth Year of Republic of India
1. Short title, extent and commencement- (1) This Act may be called the Uttar
Pradesh Municipalities (Amendment) Act, 2018
(2) It shall extend to the whole of the State of Uttar Pradesh.
(3) It shall be deemed to have come into force on January 29, 2018
2.Amendment of Section 7 of U.P. Act No. II of 1916- In Section 7 of the Uttar
Pradesh Municipalities Act, 1916 hereinafter referred to as the principal Act, in
sub-section (1) in clause (h), for the words “markets, slaughter houses” the
words “markets” shall be substituted.
3. Omission of Sections 237 and 238 – Sections 237 and 238 of the principal
Act shall be omitted.
4. Repeal and saving- (1) The Uttar Pradesh Municipalities (Amendment)
Ordinance, 2018 (U.P. Ordinance No. 3 of 2018) is hereby repealed.
(2) Notwithstanding such repeal, anything done or any action taken under the
provisions of the principal Act as amended by the Ordinance referred to in
sub-section (1)shall be deemed to have been done or taken under the
corresponding provisions of the principal Act as amended by this act as if the
provisions of this Act were in force at all material times.
Succession Act:
Sec. 59, Expln. 2 – Will – Person capable of making will by deaf, dumb or blind person –
Is valid – No restriction on execution by blind person, provided person to know what
he is doing
Section 59 of the Indian Succession Act provides, that every person of sound
mind not being a minor may dispose of his property by way of Will. It has further been
clarified that a married woman may also dispose of by Will any property which she
could transfer by her own act during her life. It is also provided that the persons who
are deaf, dumb or blind are not incapacitated for making a Will if they are able to
know what they do by it. Thus, there is no restriction of execution of a Will by a blind
person, provided, of course, that he is able to know what he is doing. Chhotey Lal v.
Ram Naresh Singh, 2018 (3) ALJ 371
Sec. 63 – Evidence Act S. 68 – Execution of Will – aAttestation – No particular form of
attestation required – Legal requirement is that will must be in writing, duly signed by
testator and two attesting witnesses
Section 59 of the Indian Succession Act provides, that every person of sound
mind not being a minor may dispose of his property by way of Will. It has further been
clarified that a married woman may also dispose of by Will any property which she
could transfer by her own act during her life. It is also provided that the persons who
are deaf, dumb or blind are not incapacitated for making a Will if they are able to
know what they do by it. Thus, there is no restriction of execution of a Will by a blind
person, provided, of course, that he is able to know what he is doing.
Section 63 of the Act provides the manner in which the Will is to be executed.
According to this provision, the Will is to be attested by two or more witnesses, each
of whom has seen the testator sign or affix his mark to the Will, or has seen some
other person sign the Will, in the presence and by the direction of the testator, or has
received from the testator a personal acknowledgement of his signature or mark. It is
further provided that it shall not be necessary that more than one witness be present
at the same time and no particular form of attestation shall be necessary. A bare
reading of Section 63 of the Act makes it clear that no particular form of attestation is
necessary. It is also not necessary that both the witnesses should remain present at
the same time.
Section 68 of the Act provides that if a document is required by law to be
attested, it shall not be used as evidence until one attesting witness at least has been
called for the purpose of proving its execution, if there be an attesting witness alive
and subject to the process of the Court and is capable of giving evidence. The Will
undoubtedly requires attestation by two witnesses but as per Section 68, the
execution of Will can be proved by calling at least one attesting witness, if he is alive. It
is not disputed that before the earlier order for grant of Letter of Administration was
cancelled, both the attesting witnesses of the Will were alive and both of them
appeared before the Court and proved the execution of Will in accordance with law.
Thus, the legal requirement for a valid Will is that it must be in writing. Secondly, it
must be duly signed by the testator and should be attested by two witnesses and each
of such witness must see that testator to sign or affix his/her mark to the Will. Chhotey
Lal v. Ram Naresh Singh, 2018 (3) ALJ 371
U.P. Consolidation of Holdings Act:
Sec. 5 – Cancellation of sale deed - Character of document once admitted -
Consolidation court has no power to cancel document
It is well settled that where fraudulent misrepresentation is in respect of
contents of the document and not as regards its character, it is voidable and unless set
aside it would operate.
It is equally well settled that Consolidation Courts have no power to
annul/cancel a document which is voidable though it can disregard a void document.
Shiv Nath Singh v. Dy. Director of Consolidation, 2018 (3) ALJ 336
Sec. 9A (2) –U.P. Zamindari Abolition and Land Reforms Act, 1950 –Sections 122 B(4F),
167 and 195- Declaration of right of Bhumidhari- Giving benefit of Section 122B(4F) of
Act, 1950 could not be attracted and applied in an eviction proceeding undertaken in
accordance with provisions of Section 167 of Act
The present petition is directed against the orders dated 07.11.2016 and
13.11.2017 passed by the Consolidation Authorities in rejecting the claim of the
petitioner for according benefit of Section 122-B (4-F) of U.P. Z.A. & L.R. Act. It appears
that pursuant to the proceeding under Section 157-AA read with Section 167 of U.P.
Z.A. & L.R. Act, the suit No.8/2006-07 was registered against the petitioner in whose
favour, registered sale deed dated 29.10.2001 was executed by the recorded
Bhumidhar namely Smt. Tikana as no prior permission was taken from the Assistant
Collector before execution of the said sale deed.
Vide order dated 13.12.2007, the Collector held that the sale transaction vide
sale deed dated 29.10.2001 was hit by Section 157-AA of the Act and the said
transaction being void under Section 166 of the Act, the consequence of Section 167
will follow. Resultantly, the land in question stood vest in the State Government under
Section 167 of the Act. It was, accordingly, declared as the State land and possession
was directed to be transferred to the Gram Sabha for the maintenance thereof. This
order was challenged in revision which was dismissed on 31.07.2009.
Submission of learned counsel for the petitioner that the possession of the
petitioner-transferee between 29.10.2001 till 13.12.2007 can, at worst, be treated to
be of an unauthorized occupant is devoid of any substance. In any case, the provisions
of Section 122-B (4-F) cannot be attracted and applied in an eviction proceeding
undertaken in accordance with the provisions of Section 167 of the Act.
Lastly, in so far as the observation of the Consolidation Officer in the last
portion of the order that it does not have jurisdiction to admit the petitioner over
Gram Sabha land under Section 122-B (4-F) of the Act is concerned, it is noteworthy
that the said observation came in the light of the legal position as noted above. The
Consolidation Officer has rightly concluded that upon the land which has been vested
in the Gram Sabha vide order dated 13.12.2007, admission as Bhumidhar can only be
done in accordance with Section 195 of U.P. Z.A. & L.R. Act considering the eligibility
criteria under Section 198 of the Act, which matter falls solely within the jurisdiction of
the Gram Sabha or the State Government with whom the land has vested. The
Consolidation Court has rightly concluded that it cannot determine the eligibility of a
person for allotment of the Gram Sabha land taking note of the order dated
31.07.2009 passed by the Commissioner in the revision arising out of the proceeding
under Section 167 of the Act for rejection of the claim of the petitioner for providing
benefit of Section 122-B (4-F) of the Act.
It cannot be said that the Consolidation Officer has refused to consider the
claim of the petitioner for settlement under Section 122-B (4-F) simply on the ground
that it had no jurisdiction to entertain and adjudicate such claim rather the claim of
the petitioner for providing benefit of Section 122-B (4-F) was rejected on merits. The
Deputy Director of Consolidation has rightly dismissed the revision.
The view taken by the Consolidation authorities for rejection of the objection of the
petitioner under Section 9-A (2) of the Act vide orders dated 07.11.2016 and
13.11.2017 cannot be said to suffer from any error of law. Ram Swaroop V. D.D.C.,
2018 (3) AWC 2183
Sec. 48, Expln. III –Scope of
Reiterated that even after addition of Expln. III, DDC cannot substitute its own
finding in place of findings of subordinate authorities. Nathoo Ram V. Deputy Director
of consolidation and others, 2018 (36) LCD 908
Sec. 49 –U.P. Zamindari Abolition and Land Reforms Act, 1950 –Sec. 229B –Suit for
declaration of share- During consolidation proceeding suit for declaration was not
maintainable and barred by S. 49 of U.P.H.C. Act- Consolidation court having full
jurisdiction to decide matter
So far as issue no.1 i.e. whether a declaration of the extent of share of the
appellants in the grove where the title of some of the other co-sharers is denied, is
barred by Section 49 of the U.P. Consolidation of Holdings Act, is concerned, in my
opinion, it is well settled that Section 49 of the Act bars jurisdiction of the civil court to
adjudicate upon dispute of rights and title relating to land included in consolidation
proceedings. In this case also, the consolidation proceeding took place. In view of the
aforesaid discussions and the proposition of law, it is evidently clear that during
consolidation proceeding, a suit for declaration was not maintainable and barred by
Section 49 of the Act. Therefore, question no.1 is answered in affirmative.
In view of the aforesaid facts and circumstances of the case and the legal
proposition as narrated above, I am of the view that the learned Munsif has not
committed any error in holding the suit to be barred by Section 49 of the U.P.C.H. Act.
For the forgoing reasons, I hold that learned Munsif rightly exercised his
jurisdiction in deciding the matter and the learned Appellate Court after holding that it
was beyond the competence of the civil court in respect of land shown in list ''A', has
erroneously partly allowed the suit of the plaintiffs. The judgment of the learned
Appellate Court so far as it holds that the civil court has jurisdiction to decide the suit
in respect of property given in list ''A' and reversion of the decree passed by the
learned Munsif, is, therefore, required to be set aside.
Accordingly, the appeal is partly allowed. The judgment of Lower Appellate
Court dated 19.5.1979 to the extent that the suit is maintainable in civil court in
respect of land shown in list ''A', is hereby set aside and Judgment and decree passed
by the learned Munsif dated 09.01.1978 is hereby affirmed. Mohd. Yaqub Khan (d)
through L.Rs. and others v. Jalil Khan (D) through L.Rs. and others, 2018 (2) AWC
1427(LB)
U.P. Land Revenue Act:
Sec. 39 – Correction of mistakes in annual register – application for – Collector has
jurisdiction to adjudicate application order passed by Sub-divisional officer has not to
do so
Any application for correction of an error in the annual register is to be made
before the Tehsildar and thereafter the same has to be referred to the Collector, after
the Tehsildar has made an enquiry in the matter. It is the Collector, who has
jurisdiction to decide the matter under Section 39 of the U.P. Land Revenue Act.
In the case at hand, the order has been passed by the Sub Divisional Officer,
who was not competent to pass any order and therefore the submission that merely a
wrong provision has been invoked or referred to, is without substance. The order
passed in favour of the petitioner could by no stretch of imagination, be one under
Section 39 of the U.P. Land Revenue Act, which empowers the Collector to pass the
order. Rakesh Kumar v. C.M.O., 2018 (3) ALJ 350
U.P. Revenue Code:
Ss. 67 and 67A –Ejectment- From land allegedly recorded as Navin Parti- Recovery of
damages- Benefit of Section 67A- Availability of
Proceedings under section 67 of the U.P. Revenue Code (short the "Code")
were initiated against the petitioner on the basis of the report of the Lekhpal dated
16.1.2015 alleging that the petitioner had raised a permanent constructions in the last
two years over the land in dispute, which was otherwise recorded as Navin Parti. Upon
notice, petitioner filed his objections alleging himself to be a scheduled caste and a
landless person whose father Dukhi Ram had constructed a house after obtaining
sanction from the regulatory authority on 23.5.88 and since his death, petitioner is
residing therein along with his family.
The Assistant Collector-I class/Tehsildar, Tahsil Sadar vide order dated
7.6.2017 directed for the eviction of the petitioner from the plot in dispute along with
recovery of damages. The petitioner unsuccessfully challenged the order dated
7.6.2017 in revision on 4.12.2017.
The revisional authority was of the view that in the event petitioner wants to
avail the benefit of section 67-A of the Code, then he can do so by filing an appropriate
suit.
There is nothing in section 67-A of the Code which contemplates that such a
right can only be claimed if the person concerned files a suit. The orders reflect that
the petitioner was claiming protection of Section 67-A of the Code on the basis of
certain materials. To expect such a person to get his rights adjudicated by way of a
separate suit so as to claim the benefit of section 67-A would only promote multiplicity
of proceedings which should be avoided. Learned Standing Counsel could not bring to
notice of the Court any legal impediment in this regard.
In view of above discussion, the orders dated 7.6.2017 and 4.12.2017 are liable to be
set aside/quashed. Suresh Chandra v. State of U.P. and others, 2018 (2) AWC 1675
U.P. Urban Building (Regulation of Letting, Rent and Eviction) Act:
Sec. 34 (1) – U.P. Urban Building (Regulation of Letting, Rent and Eviction) Rule- R. 22-
Cross- examination of deponent of affidavit- Rejection of application for- Power under
Section 34(1) of Act to be exercised sparingly only when cross-examination of
deponent found to be necessary for deciding release application
By the impugned order dated 01.02.2018 the application for cross examination
of the deponent of the affidavit (paper No.36 Ga), i.e., Sri S. S. Kushwaha, Engineer and
Architect, has been rejected on two findings, firstly, that Rule 22 does not provide for
cross examination and there is no provision under the Act for cross examination from
witness and secondly, the application for cross examination has been moved with
intent to delay with the disposal of the case. Aggrieved with the aforesaid order dated
01.02.2018 the defendant-tenant/ petitioners have filed the present writ petition.
The legal principle for allowing the cross examination in proceedings under
Section 21(1) of the Act are absolutely clear. The power under Section 34(1) of the Act
is discretionary which should be exercised sparingly by the Prescribed Authority only
when he finds that cross-examination is necessary for deciding the release application.
The application for cross-examination has to be decided in the context of factual back
drop of the case and in the context of nature of the proceedings under the Act. The
legislature has not provided for oral evidence to be adduced in support of the case as
contemplated under Order XVIII Rule 4 C.P.C. but the facts are to be proved on
affidavit. If unnecessary cross examination is permitted, that will only hamper the
expeditious disposal of the cases and shall defeat the primary object of the Act, i.e.,
the expeditious disposal of the cases. When an application for cross examination is
filed, the Court has to examine, in each case, as to whether on the facts and
circumstance of the case, cross examination is necessary and the application filed for
cross examination is bona fide. Cross examination will not be relevant as to the fact
which can be proved by documentary evidence and which can be annexed with the
affidavit. Under the scheme of the Act, oral examination may be allowed only as an
exception. If a party wants to cross examine, he has to disclose the necessary facts in
his application as to why the cross examination is necessary. Unless it is established
that the veracity of facts as stated in the affidavit is necessary to be tested by cross
examination, the cross examination cannot be allowed in proceedings under Section
21 of the Act. The party moving the application must give reasons as to which
particular part of the affidavit is incorrect and under what circumstances and for what
reasons such cross examination is necessary in the context of the facts and
circumstances of the case.
On the aforesaid legal position, although the observation made by the court
below in the impugned order that there is no provision under U.P. Act 13 of 1972 for
cross examination of witness, is incorrect, yet I do not find any good reason to
interfere with the impugned order and to allow the defendant-tenant/petitioner to
cross examine the deponent of the affidavit 36 Ga for two reasons, firstly, that the
application (paper No.72) does not disclose that which part of the affidavit is incorrect
and secondly, the application is vague and it has been moved merely to delay the
argument and disposal of such an old case. Mahesh Kumar and another v. Swami
Dayal Kaityar, 2018 (2) AWC 2100
U.P. Zamindari Abolition and Land Reforms Rules:
Sec. 161 – Exchange – Permissibility – Petitioner exchanging his bhumidhari plot with
land reserved for hospital – Exchange not permissible
A perusal of the record reveals that an application was filed by the petitioner
stating therein that an exchange had taken place sometime earlier, which was never
implemented in the revenue records. The bhumidhari plot of the petitioner had been
exchanged with certain land, which has been reserved for a Hospital. The exchange
had been effected to strengthen the boundary of the Hospital. No specific date of this
prior exchange is alleged.
It was also observed that the proceedings under Section 161 of the U.P.
Zamindari Abolition and Land Reforms Act were for exchange in praesenti. Section 161
did not confer jurisdiction to merely record an earlier exchange. In any case, land of
the State could not be exchanged. The land exchanged belonged to the State and was
recorded in the name of the Health Department. Rakesh Kumar v. C.M.O., 2018 (3) ALJ
350
Words and Phrases:
‘Just compensation’—What is-
It does not mean perfect or absolute compensation but compensation
determined after examination of particular situation obtaining uniquely in an
individual case; it should be fair, reasonable and equitable amount accepted by legal
standards. National Insurance Co. Ltd. V. Lavkush, 2018 ACJ 765 (All.)
“Property jointly acquired by the members of a joint family with the aid of ancestral
property is joint family property.”
Mulla in “Principles of Hindu Law “, 10th Edition at page 241, says: “Property
jointly acquired by the members of a joint family with the aid of ancestral property is
joint family property”. Nathoo Ram v. Deputy Director of consolidation and others,
2018 (36) LCD 908
Legal Quiz
Q. 1 Whether a suit can be dismissed for non-payment of cost by plaintiff within
time allowed?
Ans. Please See- (i) Sec. 35-B CPC (ii) Manohar Singh v. D.S. Sharma 2009 (7)
Supreme 357
Q. 2 Whether statement u/s 164 Cr.P.C. of an accused or witness or of any other
person can be recorded upon the application of an applicant other than I.O. ?
Ans. No, only I.O. can move application to the Magistrate for revording of
statement of an accused or witness U/s 164 Cr.P.C. Kindly see – Jogendra
Nahak v. State of Orissa, 1999 (4) Crimes 12 (SC)
Q.3. What is the mode of realization of cost awarded by court under some order
other than decree/ judgment?
Ans. Please see Section 36 C.P.C
Q. 4 Whether a criminal revision filed U/s. 397 Cr.P.C. against a judgment & order
passed by Magistrate in a State case can be converted into Appeal?
Ans. Yes. Kindly See----- (i) Sec. 399(2), 401(4), 401(5) Cr.P.C. (ii) Mahesh Kumar v.
State of U.P. 1978 Cr.LJ 390 (All.)
